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Special Inspector General for Afghanistan Reconstruction.
Final rule.
The Special Inspector General for Afghanistan Reconstruction (SIGAR), with the concurrence of the Office of Government Ethics (OGE), is adopting as final, without changes, an interim rule for SIGAR employees that will supplement the executive branch-wide Standards of Ethical Conduct (Standards) issued by OGE. The final supplemental regulation includes a requirement that SIGAR employees obtain prior approval for certain types of outside activities. The interim final rule was published in the
Effective Date: June 29, 2012.
On April 6, 2012, SIGAR published, with OGE concurrence, in the
SIGAR provided a 60-day comment period that ended on June 5, 2012. SIGAR received no comments and will not be making any changes to the interim final rule. Based on the rationale set forth in the interim final rule, SIGAR has determined, with OGE concurrence, to adopt the interim final rule without change as a final rule.
For a detailed analysis of this final rule, see the preamble of the interim final rule as published in 77 FR 20697.
This document affirms as final, without change, the interim final rule that is already in effect. In accordance with 5 U.S.C. 1103(b)(1) and 1105, these regulations are not subject to the rulemaking requirements of the Administrative Procedure Act, at 5 U.S.C. 553 (b), (c), and (d), because they apply solely to SIGAR or its employees.
As Acting Inspector General of SIGAR, I have determined under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not have a significant economic impact on a substantial number of small entities because it will primarily affect SIGAR employees.
As Acting Inspector General of SIGAR, I have determined that the Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this rule, because it does not contain any information collection requirements that would require the approval of the Office of Management and Budget.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.
I have determined that this rule is not a rule as defined in 5 U.S.C. 804 and, thus, does not require review by Congress.
In promulgating this rule, SIGAR has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. This rule has not been reviewed by the Office of Management and Budget under that Executive Order, since it deals with agency organization, management, and personnel matters and is not in any way event deemed “significant” thereunder.
As Acting Inspector General of SIGAR, I have reviewed this rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.
Conflict of interests, Government employees.
For the reasons stated above, the Special Inspector General for Afghanistan Reconstruction, with the concurrence of the Office of Government Ethics, is submitting the document to the Office of the Federal Register for publication as an official document of the Special Inspector General for Afghanistan Reconstruction.
Accordingly, the interim final rule amending 5 CFR part 9303, which was published at 77 FR 20697 on April 6, 2012, is adopted as a final rule without change.
In Title 29 of the Code of Federal Regulations, Parts 500 to 899, revised as of July 1, 2011, the following corrections are made:
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a 500-meter safety zone in the navigable waters, from the surface to seabed, around the DRILLSHIP NOBLE DISCOVERER, while anchored or deploying and recovering moorings on location in order to drill exploratory wells at various prospects located in the Chukchi and/or Beaufort Seas Outer Continental Shelf, Alaska, on or about July 1, 2012 through November 30, 2012. See TABLE 1. The purpose of the temporary safety zone is to protect the drillship from vessels operating outside the normal shipping channels and fairways. Placing a safety zone around the drillship will significantly reduce the threat of allisions, which could result in oil spills, and releases of natural gas, and thereby protect the safety of life, property, and the environment. Lawful demonstrations may be conducted outside of the safety zone.
The temporary safety zone becomes effective on July 1, 2012, and terminates on December 1, 2012, unless sooner terminated by the Commander, Seventeenth Coast Guard District.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2012-0024 and are available online by going to
If you have questions on this rule, call or email LT Jason Smilie, Seventeenth Coast Guard District (dpi); telephone 907-463-2809,
On February 23, 2012 the Coast Guard published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; NOBLE DISCOVERER, Outer Continental Shelf Drillship, Chukchi and Beaufort Seas, Alaska” in the
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the rule is 14 U.S.C. 85; 43 U.S.C. 1333; Department of Homeland Security Delegation No. 0170.1. Collectively they provide the authority for the Coast Guard to establish safety zones on the Outer Continental Shelf.
The Coast Guard is establishing a temporary safety zone in the navigable waters, from the surface to seabed, around the DRILLSHIP NOBLE DISCOVERER while anchored or deploying and recovering moorings on location in order to drill exploratory wells in several prospects located in the Chukchi and/or Beaufort Seas during the 2012 drilling season.
The request for the temporary safety zone was made by Shell Exploration & Production Company due to safety concerns for both the personnel aboard the NOBLE DISCOVERER and the environment. Shell Exploration & Production Company indicated that it is highly likely that any allision or inability to identify, monitor or mitigate any risks or threats, including ice-related hazards that might be encountered, could result in a catastrophic event. Incursions into the safety zone by unapproved vessels could degrade the ability to monitor and mitigate such risks. In evaluating this request, the Coast Guard explored relevant safety factors and considered several criteria, including but not limited to: (1) The level of shipping activity around the operation; (2) safety concerns for personnel aboard the vessel; (3) concerns for the environment given the sensitivity of the environmental and subsistence importance to the indigenous population; (4) the lack of any established shipping fairways, fueling and supply storage/operations, and size of the crew increase the likelihood that an allision could result in a catastrophic event; (5) the recent and potential future maritime traffic in the vicinity of the areas; (6) the types of vessels navigating in the vicinity of the area; (7) the structural configuration of the vessel, and (8) the need to allow for lawful demonstrations without endangering the safe operation of the NOBLE DISCOVERER. For any group or individual intending to conduct lawful demonstrations in the vicinity of the NOBLE DISCOVERER, these demonstrations must be conducted outside the safety zone.
Results from a thorough and comprehensive examination of the criteria, IMO guidelines, and existing regulations warrant the establishment of the temporary safety zone. The regulation will significantly reduce the threat of allisions that could result in oil spills, and releases. Furthermore, the regulation will increase the safety of life, property, and the environment in the Chukchi and/or Beaufort Seas by prohibiting entry into the zone unless specifically authorized by the Commander, Seventeenth Coast Guard District, or a designated representative. Due to the remote location and the need to protect the environment, the Coast Guard may use criminal sanctions to enforce the safety zone as appropriate.
The temporary safety zone will be around the NOBLE DISCOVERER while anchored or deploying and recovering moorings on location in order to drill exploratory wells in various locations in the Chukchi and/or Beaufort Seas Outer Continental Shelf, Alaska during the 2012 timeframe.
Shell Exploration & Production Company has ten drill sites within the Burger, Sivulliq and Torpedo prospects of the Chukchi and Beaufort Seas, Alaska (See Table 1).
During the 2012 timeframe, Shell Exploration & Production Company has proposed drilling up to two exploration wells at the identified Chukchi and Beaufort Sea prospects depending on favorable ice conditions, weather, sea state, and any other pertinent factors. Each of these drill sites will be permitted for drilling in 2012 to allow for operational flexibility in the event sea ice conditions prevent access to one of the locations. The number of actual wells that will be drilled will depend on ice conditions and the length of time available for the 2012 drilling season. The predicted “average” drilling season, constrained by prevailing ice conditions and regulatory restrictions, is long enough for two to three typical exploration wells to be drilled.
The actual order of drilling activities will be controlled by an interplay between actual ice conditions immediately prior to movement of the NOBLE DISCOVERER, ice forecasts, any regulatory restrictions with respect to the dates of allowed operating windows, whether the planned drilling activity involves only drilling the shallow non-objective section or penetrating potential hydrocarbon zones, the availability of permitted sites having approved shallow hazards clearance, the anticipated duration of each contemplated drilling activity, the results of preceding wells and Marine Mammal Monitoring and Mitigation plan requirements.
The planned exploration drilling in the identified lease blocks will be conducted with the NOBLE DISCOVERER. The NOBLE DISCOVERER is a true drillship, and is a large self-contained drilling vessel that offers full accommodations for up to 124 persons. The hull has been reinforced for ice resistance.
The NOBLE DISCOVERER has a “persons on board” capacity of 124, and it is expected to be at capacity for most of its operating period. The NOBLE DISCOVERER's personnel will include its crew, as well as Shell employees, third party contractors, Alaska Native Marine Mammal Observers and possibly Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) personnel.
While conducting exploration drilling operations, the NOBLE DISCOVERER will be anchored. The NOBLE DISCOVERER uses an anchoring system consisting of an 8-point anchored mooring spread attached to the onboard turret and could have a maximum anchor radius of 3,600 ft (1,100 m). The anchor spread, which radiates from the center of the NOBLE DISCOVERER, may pose a fouling hazard to any vessel attempting to anchor within the anchor spread. Fouling of the NOBLE DISCOVERER anchor lines may endanger the drillship, its 124 persons onboard the third party vessel, persons onboard the third party vessel and the environment.
The center point of the NOBLE DISCOVERER will be positioned within the prospect location in the Beaufort or Chukchi Sea at the coordinates listed below (See Table 1).
The NOBLE DISCOVERER will transit through the Bering Strait on or about July 1, 2012 and onto a prospect location when ice allows. Drilling will be curtailed on or before October 31, 2012. The drillship and support vessels will depart the Chukchi and Beaufort Seas at the conclusion of the 2012 drilling season.
Three submissions with comments on the proposed rule were received. No public meeting was requested, and none was held.
One comment was received suggesting that the safety zone be issued for a multi-year period similar to safety zones in the Gulf of Mexico. The Coast Guard disagrees. While the Coast Guard understands that the underlying justifications for the safety zone are not likely to change from year to year, we find that there are several operational and permitting variables with respect to these activities to support not continuing the safety zones period beyond the current 2012 drilling season as originally requested. Many of these variables would be considered substantive changes. Some of the factors that dictate a season by season publication of the safety zone include the possibility that a different vessel will be utilized for the exploratory wells; changes in the published prospect/drilling locations and corresponding latitude/longitude coordinates; significant changes in any approved future Outer Continental Shelf Lease Exploration Plans, and the limited timeframe each year (approximately 4 to 5 months) associated with actual on site activity. The nature of this activity as noted above is not currently comparable to the “manned production facility” operations in the Gulf of Mexico in that those safety zones are established for year-round operations on permanent structures that are engaged in the exploration and production of sub-sea resources. The Coast Guard will reconsider the temporary nature of these safety zones should the nature of the operations significantly change from solely seasonal exploratory drilling operations.
One comment asked for a clarification with regard to the probability of a catastrophic event resulting from an
One comment requested flexibility with respect to the effective dates of the temporary safety zone to allow for certain non-drilling demobilization activities. The Coast Guard understands the nature of the post-drilling activity and agrees that the safety zone effective period should be extended to provide that needed flexibility through November 30, 2012, but only while the vessel is on location as listed in Table 1 of the rule. The purpose of this change is to ensure the rule remains effective while the KULLUK completes demobilization activities on location, thereby enhancing the safety of the personnel aboard the OCS facility and the environment. The Coast Guard has amended the final rule to reflect the new effective termination date of December 1, 2012, so long as the vessel is on location and engaged in exploratory drilling demobilization activities until this date.
One comment requested flexibility with respect to dates the drilling rigs will be engaged in exploratory drilling, noting that the commencement of drilling activities may not be on July 1, 2012. The Coast Guard agrees and is amending language relating to the commencement of drilling activity to be “on or about” July 1, 2012.
One comment requested flexibility with respect to locations drilling rigs will be operating to state “Chukchi and/or Beaufort Seas” as opposed to “Chukchi and Beaufort Seas,” to avoid possible confusion. The Coast Guard agrees and is amending the regulation accordingly.
One comment requested the rule be amended to have the safety zone in effect once the vessels is “on location” while the mooring system is being deployed or recovered not only when the vessel is anchored. The Coast Guard agrees. The safety factors that were evaluated in determining that a safety zone was warranted while the vessel was anchored on location are substantially similar for when the vessel is on location and the mooring system is in the process of being deployed or recovered. The Coast Guard has amended § 147-T17.0024 to read: “The navigable waters, from the surface to seabed, within 500 meters (1,640.4 feet) from each point on the outer edge of the vessel, while anchored or deploying and recovering moorings on location, is a safety zone.”
Two comments recommended an extension of the outer boundaries of the safety zone to include the anchor chain extending from the OCS facilities; one comment recommended an extension to 1,500 meters from the vessel, the other recommended the zone extend to 50 meters beyond the anchor marker buoys of the mobile drilling vessel. The safety zone extends the maximum distance permitted as per 33 CFR § 147.15, which establishes the limits of a safety zone at a distance of “500 meters around the OCS facility.” Further, the determination that the outer edge of the OCS facility is marked by the physical structure of the drilling rig not to include any area encompassed by the anchor spread is consistent with other safety zones established for other similar OCS facilities operating on the Outer Continental Shelf, which is a 500 meter enforcement radius from the outer edge of the OCS facility structure.
One comment stated the safety zone should be a moving safety zone and that it should be extended to all support and tow vessels involved in the operation and referenced previous safety zones established by the Coast Guard as precedent. The safety zones referenced by the commenter were established under the Ports and Waterways Safety Act (PWSA) (33 U.S.C. 1226(b)), under which the Coast Guard agrees it has the authority to establish moving safety zones for any vessel operating within the U.S. territorial seas. The safety zone encompasses areas outside of the U.S. territorial seas and extends to the maximum extent permitted by 33 CFR 147.10 which provides a maximum enforcement area of 500 meters from the OCS facility. 33 CFR § 147 does not permit establishment of safety zones for non-OCS facilities. With respect to moving safety zones, safety zones may only be enforced while the OCS facility is being constructed, maintained, or operated on the Outer Continental Shelf. The Coast Guard, in conjunction with the Department of State, has determined that this definition does not include times where the OCS facility is in transit and not directly engaged in activity related to the exploration or extraction of mineral resources. Accordingly, the safety zone cannot be implemented or enforced during times where the OCS facility is in transit. With respect to vessel movements within the U.S. territorial seas, the Coast Guard is establishing separate moving safety zones under the PWSA through a separate rulemaking process which will include safety zones for support and tow vessels in addition to OCS facilities during periods of transit within the 12 nautical mile territorial sea in the vicinity of Dutch Harbor, Alaska.
One comment requested specific language granting State and Local officer's enforcement authority under 46 U.S.C. 70118, similar to safety zones established by the Coast Guard for the Columbia and Snake Rivers. Title 46 U.S.C. 70118 provides authority for state or local law enforcement officers to make arrests for safety zones established under the PWSA or Deepwater Port Act of 1974 (DPA) (33 U.S.C. 1509(d)). The PWSA does not apply for safety zones established outside of the territorial seas of the United States, and the DPA does not apply to the drillship to which the safety zone applies. The authority to implement this particular safety zone is based upon the Outer Continental Shelf Lands Act and 33 CFR 147. Accordingly, State and Local law enforcement officers do not have the authority to take law enforcement action due to the location of the safety zone.
One comment stated that the safety zone is overbroad and unnecessarily restricts first amendment rights. We disagree. The safety zones were created to facilitate safe navigation and promote the conduct of safe operations for entities engaging in lawful activities. However, actions taken which may potentially endanger or threaten either the individuals operating within this zone or the OCS facility within this zone will be subject to law enforcement action. There are no prohibitions on persons exercising free speech; however, actions that endanger persons or property within the safety zone are prohibited. Unauthorized vessels operating within this safety zone create an unnecessary risk to all vessels within the zone, including themselves. The Coast Guard determined this to be the best course of action given the complexities in the Arctic, which includes ice management issues, Marine Mammal Monitoring and Mitigation plan requirements, the lack of infrastructure in the Arctic, and a harsh, dynamic offshore environment. These complexities dictate reducing unnecessary risks associated with vessels not engaged in natural resource extraction activities operating near the NOBLE DISCOVERER in order to significantly reduce the threat of allisions and oil spills, and at the same time increase the safety of life, property, and the environment in the Chukchi and Beaufort Seas. The Coast Guard believes that the 500-meter safety zone is ideal because it still provides sufficient area for persons to peacefully assemble or engage in legitimate protest activities outside of the safety zone.
One comment opined that the Coast Guard should be required to prepare an Environmental Assessment (EA) and Environmental Impact Statement (EIS) under NEPA. While safety zones are typically categorically excluded from NEPA analysis, the Coast Guard anticipates that it will have more assets operating in the Arctic than normal due to increased vessel traffic in the Arctic. Consequently, the Coast Guard has undertaken an EA to determine the environmental impacts of its operations in the Arctic during the summer of 2012, and the enforcement of the subject safety zones has been included for consideration of cumulative impacts.
One comment pointed out that a preliminary environmental analysis checklist and categorical exclusion determination were stated to be available in the online record, but was not available. A preliminary determination was not completed. The Coast Guard is not required to provide a preliminary environmental analysis checklist and categorical exclusion determination for a temporary safety zone until publication of the Final Rule. The reasoning is that safety zones are generally categorically excluded, and the Coast Guard wanted to review all public comments before completing the environmental analysis checklist and categorical exclusion determination in order to ensure that it accounted for all concerns. The environmental analysis checklist and categorical exclusion determination for this temporary safety zone is available in the docket, and can be obtained online following the direction provided in the
One comment stated that the safety zones will cause increased air pollution because the air permits issued for the NOBLE DISCOVERER exclude air within the safety zones, and, therefore, the Coast Guard must undertake a “NEPA analysis” to determine the affects of any air emissions within the safety zone. The Coast Guard does not have the authority or agency expertise to issue air permits, and, therefore, does not have the authority to determine whether the issuance of those permits is appropriate. The safety zones are being implemented to enhance the safety of vessel operations during a period of increased vessel traffic at locations where any marine casualty will present unique challenges due to the remote locations, lack of infrastructure and unforgiving environmental variables.
One comment supported the determination to prohibit all vessels, irrespective of size from the safety zone. The Coast Guard determined this to be the best course of action given the complexities of this Arctic operation, which includes ice management issues, Marine Mammal and Mitigation plan requirements, and a harsh, dynamic offshore environment. The safety zones will significantly reduce the threat of allisions and oil spills, and at the same time increase the safety of life, property, and the environment in the Chukchi and Beaufort Seas. A change was also made to clarify that the subject safety zones include “the navigable waters, from the surface to seabed.”
The Coast Guard developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
This rule is not a significant regulatory action due to the location of the NOBLE DISCOVERER on the Outer Continental Shelf and its distance from both land and safety fairways. Additional considerations were the relatively short period of time that the safety zone will be in effect and the limited size of the safety zone. Vessels traversing waters near the safety zone will be able to safely travel around the zone without incurring additional costs.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule could affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the Sivulliq and Torpedo Prospect of the Beaufort Sea, including Flaxman Island blocks 6610, 6658 and 6659, and Posey Blocks 6714, 6762, 6764, 6812, 6912, and 6915 in the Chukchi Sea. (See Table 1).
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will enforce a temporary safety zone around a drillship facility near Flaxman Island of the Beaufort Sea and/or at the Burger Prospect in the Chukchi Sea, which are both areas not frequented by vessel traffic and are not in close proximity to a safety fairway. Further, vessel traffic can pass safely around the safety zone without incurring additional costs.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Coast Guard analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves a temporary final rule for a safety zone that will be established for 1 week or longer. An environmental analysis checklist and a categorical exclusion determination are included in the docket, and can be obtained online by following the directions delineated in the “ADDRESSES” section above. Nevertheless, while safety zones are typically categorically excluded from NEPA analysis the Coast Guard anticipates that it will have more assets operating in the Arctic Ocean than normal due to increased vessel traffic in the Arctic Ocean. Consequently, the Coast Guard has undertaken an Environmental Assessment (EA) to determine the environmental impacts of its overall operations in the Arctic Ocean during the summer of 2012, and the enforcement of the subject safety zones has been included for consideration of cumulative impacts. Public hearings on the draft EA were held on May 30, 2012, in Anchorage, Alaska, and on May 31, 2012, in Barrow, Alaska.
Continental shelf, Marine safety, Navigation (water).
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 147 as follows:
14 U.S.C. 85; 43 U.S.C. 1333; Department of Homeland Security Delegation No. 0170.1.
(a)
(b) The navigable waters, from the surface to seabed, within 500 meters (1,640.4 feet) from each point on the outer edge of the vessel, while anchored or deploying and recovering moorings on location, is a safety zone. Lawful demonstrations may be conducted outside of the safety zone.
(c)
(1) An attending vessel; or
(2) A vessel authorized by the Commander, Seventeenth Coast Guard District, or a designated representative. A “designated representative” is any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the Commander, Seventeenth Coast Guard District to act on his or her behalf.
(d)
(e)
Coast Guard, DHS.
Temporary Final Rule.
The Coast Guard is establishing two safety zones to remain in effect throughout the duration of the construction and renewal of the Sellwood Bridge located on the Willamette River in Portland, Oregon. This action is necessary to ensure the safety of vessels transiting in close proximity to cranes, barges, and temporary structures associated with this construction project. During the effective period, all vessels will be required to remain at the prescribed safe distance from the construction area while transiting in the vicinity of the Sellwood Bridge project; however, the establishment of these safety zones does not entirely close this section of the Willamette River. The section of the Willamette River between the safety zones will remain open for vessel transits, and it will have a minimum channel width of 138 feet at all times.
This rule is effective from July 1, 2012 until January 31, 2015.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0131 and are available online by going to
If you have questions on this Temporary Final Rule, call or email ENS Ian McPhillips, Waterways Management Division, Coast Guard MSU Portland; telephone 503-240-9319, email
On May 14, 2012 we published a notice of proposed rulemaking (NPRM) titled Sellwood Bridge Project, Willamette River (77 FR 15009). We received no comments on the proposed rule. There were no requests made for public meeting regarding this rule and none were held. No other documents have been published for this rulemaking.
The Sellwood Bridge project will replace the existing 86 year old bridge that is structurally inadequate and functionally obsolete. The project will renew the bridge with a new deck arch structure compliant with current loading and seismic requirements, upgrade the interchange at Oregon Route 43, and provide substantially improved bicycle and pedestrian facilities. Construction work will continue through January 1, 2015. The project includes the construction of two temporary structures and two new bridge piers which will each require a cofferdam. The temporary structures will be constructed to facilitate the moving of the older bridge. To ensure the safety of construction crews on the barges, temporary structures, and cranes, two safety zones on each side of the river are being established to require vessels in the vicinity of the construction area to remain outside of the two designated safety zones. Additionally, these safety zones will ensure that the vessels operating in the vicinity of the designated area will not be in any dangerous areas near the temporary structures or cranes.
The rule establishes two safety zones that cover all waters of the Willamette River; however, the establishment of these safety zones does not entirely close this section of the Willamette River. The section of the Willamette River between the safety zones will remain open for vessel transits, and it will have a minimum channel width of 138 feet at all times. The safety zone on the western river bank encompasses all waters of the Willamette River within the following four points:
The safety zone on the eastern river bank is encompassed within the following four points:
Geographically this rule covers the waters of the Willamette River for two
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866. The Coast Guard has made this determination based on the fact that the safety zones created by this rule will not significantly affect the maritime public because vessels may still transit in the vicinity of the safety zones.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners and operators of vessels intending to operate in the area covered by the safety zones. The safety zones will not have a significant economic impact on a substantial number of small entities because the area can still be used to transit through this section of the river, which will maintain a minimum width of 138 feet. Other maritime users, such as dragon boats, kayaks, and canoes, will be able to transit around the safety zones or through the open section.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact ENS Ian McPhillips, Waterways Management Division, Marine Safety Unit Portland, Coast Guard; telephone 503-240-9319, email
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such any expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interferences with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. An environmental analysis checklist supporting this determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(b) The safety zone on the eastern river bank encompasses all waters of the Willamette River within the following four points:
Environmental Protection Agency (EPA).
Direct final rule.
In this action we are approving into the Indiana State Implementation Plan (SIP) the addition of a new rule that sets volatile organic compound (VOC) emissions limits and other restrictions on consumer products that are sold, supplied, manufactured, or offered for sale in the State of Indiana.
This rule is effective August 28, 2012, unless EPA receives adverse comments by July 30, 2012. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2010-1050, by one of the following methods:
1.
2.
3.
4.
5.
Anthony Maietta, Environmental Protection Specialist, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8777,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
“Consumer products” encompass a wide array of sprays, gels, cleaners, adhesives, and other chemically formulated products that are purchased for personal or institutional use and that emit VOCs through their use, consumption, storage, disposal, destruction, or decomposition. On December 7, 2010, the Indiana Department of Environmental Management (IDEM) requested that EPA approve into its SIP the addition of a new rule that limits VOC in consumer products. The rule is located within Title 326 of the Indiana Administrative Code (IAC) Article 8 “Volatile Organic Compound Rules” at 326 IAC 8-15. The rule consists of the following nine sections:
The rule that Indiana adopted and submitted to EPA for approval is based on the model rule developed by the Ozone Transport Commission (OTC) for consumer products. The OTC is a multi-state organization created under section 176A of the Clean Air Act. It is responsible for advising EPA on transport issues and for developing and implementing regional solutions to the ground-level ozone problem in the Northeast and Mid-Atlantic regions.
The OTC has developed this model rule for consumer products which OTC member states have signed a memorandum of understanding to adopt. The OTC model rule that Indiana based its rule on is at least as stringent as, and in most cases is more stringent than, EPA's national consumer products rule, “National Volatile Organic Compound Emission Standards for Consumer Products,” 40 CFR part 59, subpart C. It should be noted that Indiana is not an OTC member state. By adopting a rule that mirrors the OTC model rule, however, Indiana is strengthening its SIP through enforceable VOC limits for consumer products with corresponding recordkeeping and reporting requirements.
The following is a summary of each section of 326 IAC 8-15 “Standards for Consumer and Commercial Products,” as submitted on November 7, 2010, and a discussion of why each section is approvable into the State's SIP.
This section makes 326 IAC 8-15 applicable to any person who sells, supplies, offers for sale, or manufactures consumer products in the State of Indiana on or after June 1, 2011. The applicability for the rule as outlined in this section is congruent with the model OTC language, and therefore is approvable for inclusion in Indiana's SIP.
This section provides definitions of products, terms, acronyms, and other language that are unique and/or specific to this rule. This section is congruent with the OTC model rule, and therefore is approvable for inclusion in Indiana's SIP.
This section codifies VOC standards for each category of consumer products affected by 326 IAC 8-15 and includes additional requirements for certain product categories. Each category of consumer product and its associated VOC limit mirror the OTC model rule as do additional requirements for certain product categories, including:
This section is at least as stringent as the OTC model rule, and therefore is approvable for inclusion in Indiana's SIP.
This section outlines conditions for certain products that may allow them to be exempt from 326 IAC 8-15, including an exemption for products manufactured in the State but meant for sale outside the State. This section also allows a retailer (but not manufacturer) to not be considered in violation of 326 IAC 8-15 if they immediately discontinue sale of the violating product, and make good faith efforts to assure the product met the applicable requirements of 326 IAC 8-15. Finally, this section excludes any products that are regulated under this rule from the administrative requirements of the rule if the products are registered under FIFRA. This section is congruent with the OTC model rule, and therefore is approvable.
This section allows for an exemption for products otherwise covered under 326 IAC 8-15, so long as the manufacturer has been granted an innovative products exemption by CARB or the air pollution control agency of another state with an innovative products exemption substantially equivalent to CARB's. This section then outlines additional requirements necessary for Indiana to consider an innovative products exemption to be valid within the State. Finally, this section outlines conditions in which the innovative products exemption can expire or be revoked by the State. This section is congruent with the OTC model rule, and therefore is approvable.
This section outlines circumstances in which a manufacturer of a product regulated under 326 IAC 8-15 can provide an alternative method to comply with the VOC limits contained in Indiana's rule. Only manufacturers who have been granted an alternative control plan by CARB, or a state air pollution control agency with alternative control plans to consumer product VOC limits that are substantially equivalent to CARB's alternative control plan, may be exempted from the VOC limits in Indiana's rule. The section also outlines circumstances in which an approved alternative control plan can be considered valid, or can be revoked by the State. This section is congruent with the OTC model rule, and therefore is approvable.
This section outlines product dating and labeling requirements for consumer products manufactured or sold in Indiana. This section also defines the most restrictive limit that a product must meet if it is regulated by FIFRA as well as 326 IAC 8-15. This section is congruent with the OTC model rule and therefore is approvable.
This section outlines the recordkeeping and reporting requirements that manufacturers of products regulated under this rule must meet. Manufacturers must keep and make available to Indiana or EPA information about their product, including:
This section also specifies which information a company may present to the State if it cannot meet the requirements listed above. Finally, this section contains special reporting requirements for products that contain perchloroethylene or methylene chloride. This section is congruent with the OTC model rule, and therefore is approvable.
This section outlines methods acceptable to the State that manufacturers can use to determine compliance with the VOC content limits outlined in the rule. Manufacturers may use CARB Method 310, a method approved in writing both by the State of Indiana and EPA, or through calculation of the VOC content of constituents used to make the product. This section also includes the approved method to test whether a product is a liquid or solid, and the approved method to determine the distillation points of petroleum distillate-based charcoal lighter materials. This section is congruent with the OTC model rule, and therefore is approvable.
EPA is approving into the Indiana SIP Title 326 IAC Article 8-15 as adopted by the State of Indiana and as submitted to EPA on December 7, 2010. We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the 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,
• 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 28, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Coast Guard, DHS.
Final rule; Interpretation.
The Coast Guard is establishing an alternate size threshold based on the measurement system established under the International Convention on Tonnage Measurement of Ships, 1969, for oil spill response vessels, which are properly certificated under 46 CFR chapter I, subchapter L. The present size threshold of 500 gross register tons is based on the U.S. regulatory measurement system. This final rule provides an alternative for owners and operators of offshore supply vessels that may result in an increase in oil spill response capacity and capability. This final rule adopts, without change, the interim rule amending 46 CFR part 126 published in the
This final rule is effective June 29, 2012.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2011-0966 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
If you have questions on this final rule, call or email Mr. Brian T. Ellis, Coast Guard Marine Safety Center; telephone 202-475-5636, email
On Monday, December 12, 2011, the Coast Guard published an interim rule with request for comments entitled Alternate Tonnage Threshold for Oil Spill Response Vessels in the
The interim final rule published in the
This final rule establishes an alternate tonnage threshold at 6000 Gross Tonnage International Tonnage Convention (GT ITC) for oil spill response vessels (OSRVs) that are also certificated as offshore supply vessels (OSVs). The selected alternate tonnage threshold is consistent with a 6000 GT ITC alternate threshold established for OSVs in 1996.
Because this final rule provides for optional use of an alternative approach to meet an existing requirement, there is no mandatory cost to the public. The authority for this final rule is the 1996 Coast Guard Authorization Act (the Act) (Pub. L. 104-324), as codified in 46 U.S.C. 3702(f)(2)(A) and 14104(b).
The interim final rule, published in the
We developed this final rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has reviewed it under that Order.
This final rule establishes a tonnage threshold of 6000 GT ITC for OSRVs under the alternate tonnage framework, which offers a mechanism for the Coast Guard to regulate vessels under tonnages assigned using the convention measurement system, instead of the regulatory measurement system. Therefore, this final rule provides an option to owners of vessels certificated as OSVs (under 46 CFR subchapter L) to seek OSRV certification based on this alternate tonnage threshold. We believe that a vessel owner will opt to use the alternate tonnage framework described in this final rule only if it will be beneficial to the owner's business.
We expect this final rule to be beneficial to the public and to the maritime industry because it provides the opportunity to increase oil spill response capacity and capability.
This final rule provides for optional and voluntary use of an alternative approach to meet an existing requirement. Accordingly, there is no mandatory cost to the public.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), this rule is considered an interpretive rule and is not subject to the requirement under 5 U.S.C. 553(b) for publication of a general notice of proposed rulemaking. Therefore, under 5 U.S.C. 601, it is not a rule that is subject to the Regulatory Flexibility Act (5 U.S.C. 601
The Coast Guard issued this rule as an interpretive rule on December 12, 2011, as authorized by section 702 of the Act (Pub. L. 104-324; October 19, 1996). The Conference Report on the Act (H. Rept. 104-854) states that, because this rule is considered to be an interpretive rule under the Administrative Procedure Act (5 U.S.C. 551
This final rule provides for optional and voluntary use of an alternative approach to owners of vessels certificated as OSVs to seek an OSRV certification based on an alternate tonnage threshold. We believe that a vessel owner will opt to use the alternate tonnage framework described in this final rule only if it will be beneficial to the owner's business. We expect this final rule to be beneficial to the public and to the maritime industry because it provides the opportunity to increase the availability and capacity of OSRVs.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Brian T. Ellis, U.S. Coast Guard Marine Safety Center, Tonnage Division, 202-475-5636,
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. It is well settled that States may not establish alternate tonnages for oil spill response vessels pursuant to 46 U.S.C. 3702(f)(2)(A). Therefore, preemption is not an issue under Executive Order 13132.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this final rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This final rule is categorically excluded under section 2.B.2, figure 2-1, paragraph (34)(d) of the Instruction. Exclusion under paragraph (34)(d) applies because this final rule pertains to regulations concerning documentation and admeasurement of vessels. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Cargo vessels, Marine safety, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 46 CFR part 126, which was published at 76 FR 77128 on December 12, 2011, is adopted as a final rule without change.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update policies on the submission of payment requests and receiving reports in electronic format.
Ms. Veronica Fallon, 571-372-6087.
DoD published a proposed rule at 76 FR 71928 on November 21, 2011, to update DFARS policies and procedures for electronic submission of payment requests and receiving reports through Wide Area WorkFlow (WAWF) and TRICARE Encounter Data System (TEDS). WAWF, which electronically interfaces with the primary DoD payment systems, is the accepted DoD system for generating invoices and receiving reports. TEDS is an accepted system for processing payment requests for rendered TRICARE health care services.
The capabilities of WAWF have expanded to enable use in additional environments by a wider variety of users. As such, this rule expands the use of WAWF for submission of payment requests and receiving reports and standardizes processes and instructions on the use of WAWF. The public comment period closed January 20, 2011. Six respondents submitted comments on the proposed rule.
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
Changes to the proposed rule to clarify language were made at 232.7002 Policy, 232.7004 Prescription, and the Payment Clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports. The new payment instruction clause at 252.232-7006, Wide Area WorkFlow Payment Instructions, was changed to more clearly identify WAWF as DoD's method to receive payment requests and receiving reports and clarify language and to clarify instructions for completion of clause fill-ins.
In response to the concern regarding possible scenarios resulting from ambiguous terminology of the text, the language in question is deleted, leaving a clear statement. Likewise, deletion of this text served to resolve the comment concerning the intended use of the note following the paragraph.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD expects that this rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule incorporates WAWF's new capability of capturing receiving reports for contracts paid with a Governmentwide commercial purchase card and clarifies exceptions to the use of WAWF. The rule also consolidates and standardizes instructions to contractors on how to use the WAWF application. Furthermore, it eliminates locally defined methods that, in some cases, cause confusion and inefficiencies. It also incorporates the use of TEDS for medical services requiring Health Insurance Portability and Accountability Act data not handled by WAWF.
DoD made small business awards to 47,000 companies in Fiscal Year 2011. With the exception of less than 7,000 companies that only received awards paid with a purchase card, this rule will simplify procedures by allowing contractors to use the same payment process and systems for all DoD shipments.
This rule does not impose any new reporting or record keeping requirements.
The rule does not duplicate, overlap, or conflict with any other Federal rules. No significant alternatives have been identified that would accomplish the stated objectives of this rule.
This rule does not impose any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 218, 232, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(j)
(a)(1) Contractors shall submit payment requests and receiving reports in electronic form, except for—
(i) Classified contracts or purchases when electronic submission and processing of payment requests could compromise the safeguarding of classified information or national security;
(ii) Contracts awarded by deployed contracting officers in the course of military operations, including, but not limited to, contingency operations as defined in 10 U.S.C. 101(a)(13) or humanitarian or peacekeeping operations as defined in 10 U.S.C. 2302(8), or contracts awarded by contracting officers in the conduct of emergency operations, such as responses to natural disasters or national or civil emergencies, when access to Wide Area WorkFlow by those contractors is not feasible;
(iii) Purchases to support unusual or compelling needs of the type described in FAR 6.302-2, when access to Wide Area WorkFlow by those contractors is not feasible;
(iv) Cases in which DoD is unable to receive payment requests or possible acceptance in electronic form;
(v) Cases in which the contracting officer administering the contract for payment has determined, in writing, that electronic submission would be unduly burdensome to the contractor. In those cases, the contracting officer administering the contract shall furnish a copy of the determination to their Senior Procurement Executive; and
(2) When the Governmentwide commercial purchase card is used as the method of payment, only submission of the receiving report in electronic form is required.
(b) For payment of commercial transportation services provided under a Government rate tender or a contract for transportation services, the use of a DoD-approved electronic third party payment system or other exempted vendor payment/invoicing system (e.g., PowerTrack, Transportation Financial Management System, and Cargo and Billing System) is permitted.
(c) For submitting and processing payment requests and receiving reports for rendered health care services, use of TRICARE Encounter Data System as the electronic format is permitted.
(a) Except as provided in 232.7002(a), use the clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports, in solicitations and contracts.
(b) Use the clause at 252.232-7006, Wide Area WorkFlow Payment Instructions, when 252.232-7003 is used and neither 232.7003 (b) nor (c) apply. See PGI 232.7004 for instructions on completing the clause.
The additions read as follows:
(a) * * *
(4) “Receiving report” means the data required by the clause at 252.246-7000, Material Inspection and Receiving Report.
(c) * * *
(3) DoD makes payment for rendered health care services using the TRICARE Encounter Data System (TEDS) as the electronic format; or
(4) When the Governmentwide commercial purchase card is used as the method of payment, only submission of the receiving report in electronic form is required.
As prescribed in 232.7004(b), use the following clause:
(a)
(b)
(c)
(1) Have a designated electronic business point of contact in the Central Contractor Registration at
(2) Be registered to use WAWF at
(d)
(e)
(f)
(1)
(2)
(3)
(*
(4)
(5)
(g)
(2) For technical WAWF help, contact the WAWF helpdesk at 866-618-5988.
Defense Acquisition Regulations System, Department of Defense (DoD).
Interim rule.
DoD is issuing an interim rule to implement sections of the National Defense Authorization Act for Fiscal Year 2012 that address the acquisition of tents and other temporary structures.
Submit comments identified by DFARS Case 2012-D015, using any of the following methods:
○
Submit comments via the Federal eRulemaking portal by inserting “DFARS Case 2012-D015” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2012-D015.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2012-D015” on your attached document.
○
○
○
Comments received generally will be posted without change to
This interim rule amends DFARS subpart 225.70 and the associated DFARS clauses at 252.212-7001 and
• Section 368 requires award of contracts that provide the best value, when acquiring tents and other temporary structures, regardless of whether purchased by DoD or by another agency on behalf of DoD.
• Section 821 amends 10 U.S.C. 2533a (the “Berry Amendment”), to extend the restriction requiring acquisition of domestic tents to include the structural components of tents, applicable to acquisitions that exceed the simplified acquisition threshold. There is also an exception for domestic nonavailability (see DFARS 225.7002-2).
The interim rule provides a definition of “structural component of a tent” and also provides examples of the type of temporary structures covered by this regulation.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD does not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The objectives of this interim rule are to—
• Require that contracts for the acquisition of tents and other temporary structures provide best value, regardless of whether purchased by DoD or by another agency on behalf of DoD; and
• Extend the domestic source restriction of 10 U.S.C. 2533a (the “Berry Amendment”) to cover the structural components of tents, in order to promote the use of domestic materials and enhance growth of the United States economy.
The legal basis for this interim rule is sections 368 and 821 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81).
The requirement to award contracts that provide best value to the Government does not have any impact on small business entities, because that is already a general requirement for all acquisitions.
The domestic source restriction on the structural components of tents may affect approximately 40 or less small business concerns at the prime contract level. Review of the Fiscal Year 2011 data on acquisition of items with product or service code 8340 (tents or tarpaulins) identified 49 actions with small business concerns (contracts or orders), estimated value of $48.6 million, of which about 10 percent appeared to be for other than tents (e.g., prefabricated metal buildings and components, metal household furnishings, or electrical equipment). The Federal Procurement Data System does not provide data on components, so it is not known the extent to which the providers of tents currently utilize domestic or foreign structural components. An exception may be granted if a component is domestically nonavailable. However, this rule promotes the use of domestic components, and should, therefore, be favorable to small entities that provide domestic structural components of tents. The requirements of the rule will not apply below the simplified acquisition threshold.
This rule does not impose any reporting or recordkeeping requirements.
The rule does not duplicate, overlap, or conflict with any other Federal rules.
DoD did not identify any significant alternatives that would accomplish the stated objectives of the statute. The rule specifically implements the statutory requirement.
DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D015) in correspondence.
This interim rule does not apply below the simplified acquisition threshold. Section 821 amends 10 U.S.C. 2533a (the “Berry Amendment”), which specifically exempts acquisitions below the simplified acquisition threshold. The “Berry Amendment”, implemented at DFARS clause 252.225-7012, Preference for Certain Domestic Commodities, specifically applies to contracts or subcontracts for the acquisition of commercial items that are articles, items, specialty metals, or tools covered by the “Berry Amendment” (including tents and components of tents) (see section 8109 of Pub. L. 104-208) and is included in the clause list in DFARS clause 252.212-7001, Contract Terms and Conditions required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items.
Section 368 only imposes requirements on the internal operating procedures of DoD, and does not address application below the simplified acquisition threshold. Most acquisitions of tents and other temporary structures exceed the simplified acquisition threshold. In accordance with 41 U.S.C. 1901, simplified acquisition procedures are to be used to promote efficiency and economy in contracting to avoid unnecessary burdens for agencies and contractors. Written acquisition plans are not required for acquisitions below the simplified acquisition threshold. Therefore, this rule does not apply to acquisitions of tents and other temporary structures below the simplified acquisition threshold.
This rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
A determination has been made under the authority of the Secretary of Defense, that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements sections 368 and 821 of the National Defense Authorization Act for Fiscal Year 2012. This requirement became effective upon enactment, December 23, 2011. This action is necessary in order to enable contracting officers to comply with this new requirement, which will promote the use of domestic materials and enhance growth of the United States economy. Pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), comments received in response to this interim rule will be
Government procurement.
Therefore, 48 CFR parts 225 and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(e)
(a) * * *
(3)
(i) When acquiring tents or other temporary structures for use by the Armed Forces, the contracting officer shall award contracts that provide the best value (see FAR 15.101). Temporary structures covered by this paragraph (a)(3)(i) are nonpermanent buildings, including tactical shelters, nonpermanent modular or pre-fabricated buildings, or portable or relocatable buildings, such as trailers or equipment configured for occupancy (see also DFARS 246.270-2)). Determination of best value includes consideration of the total life-cycle costs of such tents or structures, including the costs associated with any equipment, fuel, or electricity needed to heat, cool, or light such tents or structures (see FAR 7.105(a)(3)(i) and PGI 207.105(a)(3)(i)).
(ii) These requirements apply to any agency or department that acquires tents or other temporary structures on behalf of DoD (see FAR 17.503(d)(2)).
The addition and revision read as follows:
(a) * * *
(i) Means a component that contributes to the form and stability of the tent (e.g., poles, frames, flooring, guy ropes, pegs);
(ii) Does not include equipment such as heating, cooling, or lighting.
(b) * * *
(3) Tents and structural components of tents, tarpaulins, and covers.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add the Czech Republic as a qualifying country.
Ms. Amy G. Williams, telephone 571-372-6106.
DoD is amending the DFARS to add the Czech Republic as a qualifying country. On April 18, 2012, the Secretary of Defense signed a new reciprocal defense procurement agreement with the Czech Minister of Defense. The agreement removes discriminatory barriers to procurements of supplies and services produced by industrial enterprises of the other country to the extent mutually beneficial and consistent with national laws, regulations, policies, and international obligations. The agreement does not cover construction or construction material.
“Publication of proposed regulations”, 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment. Adding the Czech Republic to the list of 21 other countries that have similar reciprocal defense procurement agreements with DoD does not alter the substantive meaning of the basic DoD policy on contracting with qualifying country sources. Accordingly, the change does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, does not have a significant effect beyond the internal operating procedures of DoD, and will not have a significant cost or administrative impact on contractors or offerors.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.
This rule affects the certification and information collection requirements in the provisions at DFARS 252.225-7000, 252.225-7020, currently approved under OMB Control Number 0704-0229, titled DFARS Part 225, Foreign Acquisition, and Associated Clauses, in the amount of 57,235 hours, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because it merely shifts the category under which items from the Czech Republic must be listed.
Government procurement.
Therefore, 48 CFR parts 225 and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(a)
(a) * * *
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“Qualifying country” means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule modifies the regulations implementing the Northeast (NE) Multispecies Fishery Management Plan (FMP) to allow vessels issued a Federal skate permit and a Skate Bait Letter of Authorization to fish for skates in a portion of southern New England (SNE) from July 1 through October 31 of each year, outside of the NE multispecies days-at-sea (DAS) program. This action allows vessels to harvest skates in a manner that is consistent with the bycatch reduction objectives of the NE Multispecies FMP.
Effective July 1, 2012.
An environmental assessment (EA) was prepared for the Secretarial Amendment that describes this action and other considered alternatives, and provides an analysis of the impacts of the approved measures and alternatives. Copies of the Secretarial Amendment, including the EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Daniel Morris, Acting Regional Administrator, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also available online at
Travis Ford, Fishery Management Specialist, 978-281-9233; fax 978-281-9135; email:
Current regulations, implemented under Framework Adjustment 9 (60 FR 19364, April 18, 1995) and expanded under Amendment 7 to the FMP (61 FR 27710, May 31, 1996), contain a NE multispecies fishing mortality and bycatch reduction measure that is applied to the Gulf of Maine (GOM), Georges Bank (GB), and SNE Exemption Areas found in 50 CFR § 648.80. A vessel may not fish in these areas unless it is fishing under a NE multispecies or a scallop DAS allocation, is fishing with exempted gear, is fishing under the Small Vessel Handgear (A or B) or Party/Charter permit restrictions, or is fishing in an exempted fishery. The procedure for adding, modifying, or deleting fisheries from the list of exempted fisheries is found in 50 CFR § 648.80. A fishery may be exempted by the Regional Administrator (RA), after consultation with the New England Fishery Management Council (Council), if the RA determines, based on available data or information, that the bycatch of regulated species is, or can be reduced to, less than 5 percent by weight of the total catch and that such exemption will not jeopardize the fishing mortality objectives of the FMP.
Representatives from the NE multispecies sector fleet submitted an exempted fishery request to the RA on April 1, 2011. The petitioners requested that NMFS consider an exempted fishery for trawl vessels using 6.5-inch (16.5-cm) mesh nets and targeting skate bait in a portion of SNE from June through November of each year (referred to in the EA and in this rule as Alternative 2). Northeast Fisheries Observer Program (NEFOP) and at-sea monitoring (ASM) data were compiled and analyzed with reference to groundfish vessels targeting skate in the area and months requested for the exemption. A second alternative was assessed that reduced both the size of the exempted area and the requested season from June through November to July through October (referred to in the EA and in this rule as Alternative 1). The data best supported Alternative 1, revealing that bycatch of regulated species (primarily winter flounder and windowpane flounder) was substantially reduced from the original proposal by reducing the area and contracting the time period.
On April 27, 2012, a proposed rule was published in the
The RA has determined that an exempted skate bait trawl fishery in a specifically defined portion of SNE meets the exemption requirements in § 648.80(a)(8)(i). Analysis of available data indicate that bycatch of regulated species by vessels targeting skate bait in that portion of SNE is less than 5 percent, by weight, of the total catch. Also, the RA has determined that the exemption will not jeopardize the fishing mortality objectives of the FMP because this exemption does not increase the demand for skate bait and is not expected to increase fishing for skate bait. Due to this exemption, common pool vessels will have more DAS available to target multispecies; however, DAS are not considered a limiting factor in the common pool. Further, Annual Catch Limits (ACLs) for each stock will prevent the overharvest of any species. Based on these determinations, the RA is exempting eligible vessels from the prohibition against fishing while not on a DAS in a portion of SNE from July through
The SNE Skate Bait Trawl Exemption Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting the area are available from the RA upon request):
As required by existing regulations, vessels participating in the exempted skate fishery will need to hold a Federal skate permit and a valid Skate Bait Letter of Authorization (LOA) from the RA containing an exemption from the skate wing possession limits, which will allow them to land whole skates for use as bait. A participating vessel may possess and land up to 25,000 lb (9,072 kg) of whole skates of less than 23 inches (59 cm) total length. In addition, vessels will be limited by the skate bait Total Allowable Landings (TAL) that is divided into three seasons to help maintain a supply of bait throughout the fishing year. When 90 percent of the seasonal quota is landed in either Season 1 or 2, or when 90 percent of the annual skate bait TAL is landed, the RA will close the directed fishery by reducing the skate bait possession limit to the whole weight equivalent of the skate wing possession limit in effect at that time (either 5,902 lb (2,677 kg); 9,307 lb (4,222 kg); or 1,135 lb (515 kg)).
For additional details regarding the SNE Skate Bait Trawl Exemption Area, please see the proposed rule for this action.
No comments were received.
There are no changes from the proposed measures in this final rule.
NMFS has determined that this final rule is consistent with the FMP and the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Assistant Administrator, NMFS, finds that a waiver of the 30-day delay in the rule's effectiveness is justified under 5 U.S.C. 553(d)(1) because this rule “recognizes an exemption or relieves a restriction[.]” Currently, vessels fishing for skates in the SNE must use a groundfish DAS. This rule creates an exemption to the DAS requirement and allows vessels fishing in a portion of the SNE with 6.5 inch (16.5-cm) net mesh during part of the year to fish without using a DAS. As a result, more DAS will be available to vessels to fish specifically for groundfish rather than have them used on skate trips that catch very small amounts of groundfish. Because this rule recognizes an exemption and relieves a restriction by eliminating the requirement that vessels use NE Multispecies DAS while targeting skate bait in SNE, the 30-day delay in effectiveness may be waived pursuant to 5 U.S.C. 553(d)(1).
The Assistant Administrator also finds that there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay because such a delay would be contrary to the public interest by potentially preventing sector members from realizing the full potential savings in discards and DAS. The exemption would ordinarily be in effect from July 1 to October 31, but the 30-day delay in effectiveness would reduce the duration of the exemption in 2012 by nearly 25 percent. Currently, sector members in the SNE area have an elevated groundfish discard rate applied to skate trips fished under groundfish DAS. The elevated discard rate applied to skate trips and use of DAS on skate trips costs sector members approximately $24,000 each year. Delaying the effective date of this rule could prevent the sector members from obtaining the full amount of cost savings. Further, waiving the 30-day delay in effectiveness will not cause any hardship for regulated entities because this rule does not create any new obligations or otherwise require trawl operators to make modifications to equipment or processes. Therefore, the primary rationale for the 30-day delay—to provide regulated entities with time to prepare for new rules—does not apply to this rule.
Pursuant to 5 U.S.C. 603, a Final Regulatory Flexibility Analysis (FRFA) has been prepared, which describes the economic impacts that this rule will have on small entities. The FRFA incorporates the economic impacts and analysis summarized in the Initial Regulatory Flexibility Analysis (IRFA) for the proposed rule for this action, and the corresponding economic analyses prepared for this action in the EA and the Regulatory Impact Review (RIR). The contents of these documents are not repeated in detail here. Copies of the IRFA, the RIR, and the EA are available upon request (see
There are no Federal rules that duplicate, overlap, or conflict with this rule. This action does not include any new reporting, recordkeeping, or other compliance requirements. This rule creates a new skate bait trawl exemption area for trawl vessels targeting skate bait in SNE. This action was compared to two different alternatives for the exemption. Alternatives to the selected exemption include exempting a larger portion of SNE for a longer period of time, from June through November, and the No Action alternative, which would continue to require vessels targeting skate bait in this area to be on a declared NE multispecies trip from July through October.
The Small Business Administration (SBA) defines a small commercial fishing entity as a firm with gross receipts not exceeding $4 million. In Rhode Island, there are two major dealers involved in the skate bait market. One reports supplying skate bait to 100 lobster businesses located in Point Judith, Wickford, Newport, Westerly, and Jamestown, RI, along with businesses scattered throughout Connecticut and Massachusetts. The company buys skate bait from 12-15 vessels throughout the year. The lobster businesses supplied by the company employ between two and four crewmembers per vessel. The other major skate dealer in Rhode Island supplies local Newport, Sakonnet, and New Bedford, MA, vessels and numerous offshore lobster vessels fishing in the Gulf of Maine. Skates are supplied to this dealer from draggers working out of Newport and Tiverton, RI, and New Bedford, MA.
Due to direct, independent contracts between draggers and lobster vessels, landings of skates are estimated to be under-documented. While skate bait is always landed (rather than transferred at sea), it is not always reported because it can be sold directly to lobster vessels by non-federally permitted vessels, which
This action is expected to benefit the local fishing communities that have historically depended on the skate bait fishery in SNE. This exemption was requested by members of the NE multispecies fishing industry, specifically members of a sector that fishes in the SNE area. The cost of fishing for skate bait has become increasingly high primarily due to the deduction of calculated discards from each vessel's sector's Annual Catch Entitlement (ACE) when fishing under a groundfish DAS. This exemption will allow vessels to target skate bait outside of the DAS program, which will prevent the discards being deducted from their sector's ACE at a higher rate than is actually occurring. The EA for this action estimates that the exemption could save the fleet approximately $24,489.79 a year in discards and DAS alone.
With the elimination of these low discard trips from the sector's discard stratum, the overall discard rate for the sector will likely increase because skate bait trips that were observed were keeping the discard rate for trips targeting groundfish artificially low. While this change will result in an increase of the discard rate for the skate bait vessel's original discard stratum, the increase will not represent a significant cost to the SNE sector vessels that are not participating in the exemption and is outweighed by the benefit of the exemption. In addition, the calculated discard rates for both groundfish vessels and skate bait vessels will be more accurate as a result of the exemption; more accurate discards are not expected to have an economic effect on the fishing community as a whole. Further, participation in this exemption is voluntary. A vessel may still choose to target skate bait during the exemption while on a DAS should they feel it is to their benefit.
The impacts of Alternative 2, which extends the exemption an additional 2 months over a larger area, would be expected to be similar to the impacts of Alternative 1, but the expanded area and time would allow more vessels a greater opportunity to participate in the exempted fishery. The EA for this action estimates that Alternative 2 would save the industry an additional $ 3,739.37 compared to Alternative 1, for a total savings of $28,229.16. However, the months of June and November showed an increased number of trips that caught over 5 percent groundfish, and a large portion of the area could not be evaluated because there were no observer or ASM data available. Providing an exemption for trips that caught over 5 percent groundfish, or for areas for which no data are available, would be contrary to the current regulations. Therefore, this alternative was not selected.
The No Action Alternative would have a negative economic impact on SNE skate bait vessels relative to Alternative 1. This exemption was requested because of the economic burden that the cost of DAS and calculated discards had on sector fishermen targeting skate bait. As described above, it is estimated that this exemption could save the fleet approximately $24,489.79 a year in discards and DAS alone compared to the No Action alternative. Under the No Action Alternative, sector fishermen targeting skate bait would continue fishing on DAS only to be charged a higher than observed groundfish discard rate for their trip targeting skate bait. The skate bait fishery is a valuable resource to those fishing in SNE. The groundfish discards that are attributed to these trips come directly out of the vessel's sector's ACE, which takes away the opportunity to catch these fish in the future.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule. As part of this rulemaking process, NMFS prepared a small entity compliance guide, which will be sent to all holders of permits issued for the NE skate fishery. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator (see
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(k) * * *
(5) * * *
(i) Violate any of the provisions of § 648.80, including paragraphs (a)(5), the Small-mesh Northern Shrimp Fishery Exemption Area; (a)(6), the Cultivator Shoal Whiting Fishery Exemption Area; (a)(9), Small-mesh Area 1/Small-mesh Area 2; (a)(10), the Nantucket Shoals Dogfish Fishery Exemption Area; (a)(11), the GOM Scallop Dredge Exemption Area; (a)(12), the Nantucket Shoals Mussel and Sea Urchin Dredge Exemption Area; (a)(13), the GOM/GB Monkfish Gillnet Exemption Area; (a)(14), the GOM/GB Dogfish Gillnet Exemption Area; (a)(15), the Raised Footrope Trawl Exempted Whiting Fishery; (a)(16), the GOM Grate Raised Footrope Trawl Exempted Whiting Fishery; (a)(18), the Great South Channel Scallop Dredge Exemption Area; (b)(3), exemptions (small mesh); (b)(5), the SNE Monkfish and Skate Trawl Exemption Area; (b)(6), the SNE Monkfish and Skate Gillnet Exemption Area; (b)(8), the SNE Mussel and Sea Urchin Dredge Exemption Area; (b)(9), the SNE Little Tunny Gillnet Exemption Area; (b)(11), the SNE Scallop Dredge Exemption Area; or (b)(12), the SNE Skate Bait Trawl Exemption Area. Each violation of any provision in § 648.80 constitutes a separate violation.
(b) * * *
(2) * * *
(vi)
(12)
(i)
(ii)
(B) Vessels must use trawl gear, as specified in § 648.80(b)(2)(i).
(C) Vessels must possess an active skate bait letter of authorization issued by the Regional Administrator, as specified in § 648.322(c) and fish pursuant to the terms of authorization.
(D) Fishing may only occur from July 1 through October 31 of each fishing year.
Nuclear Regulatory Commission.
Preliminary draft regulatory basis; request for comment.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is making available a preliminary draft regulatory basis for a proposed rulemaking that would amend the NRC's regulations concerning the license renewal requirements for non-power reactors. This contemplated rulemaking would also make conforming changes to address technical issues in existing non-power reactor regulations. The NRC is seeking input from the public, licensees, certificate holders, and other stakeholders on the preliminary draft regulatory basis.
Submit comments by July 31, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.
You may access information and comment submissions related to this preliminary draft regulatory basis, which the NRC possesses and are publicly available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Duane Hardesty, Project Manager, Research and Test Reactors Licensing Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, Mail Stop: O12-E20, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3724; email:
Please refer to Docket ID NRC-2011-0087 when contacting the NRC about the availability of information for this preliminary draft regulatory basis. You may access information related to this preliminary draft regulatory basis, which the NRC possesses and are publicly available, by any of the following methods:
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Please include Docket ID NRC-2011-0087 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
In response to Commission direction in a Staff Requirements Memorandum for SECY-08-0161 (ADAMS Accession Nos. ML082550140 and ML090850159), the NRC has developed a preliminary draft regulatory basis for a proposed rulemaking regarding non-power reactor licenses. The preliminary draft regulatory basis document describes the NRC's overall objectives, conceptual approaches, potential solutions, integration with the NRC's strategic goals, and related technical and
The NRC is issuing this notice to solicit public comments on the preliminary draft regulatory basis to streamline non-power reactor license renewal. After the NRC staff considers public comments, it will make a determination regarding issuance of the final regulatory basis. Any subsequent versions of the regulatory basis will be posted on
For the Nuclear Regulatory Commission.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Reopening of comment period.
This document announces a reopening of the comment period for 15 days in order to consider comments previously submitted after the close of the earlier comment period and to allow interested parties to submit comments on the notice of proposed rulemaking to establish energy conservation standards for battery chargers and external power supplies.
Comments must be submitted no later than July 16, 2012.
Any comments submitted must identify the subject matter (“Notice of Proposed Rulemaking to Establish Energy Conservation Standards for Battery Chargers and External Power Supplies”) and provide the appropriate docket number (EERE-2008-BT-STD-0005) and/or RIN number (1904-AB57). Comments may be submitted using any of the following methods:
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For information on how to submit or review public comments, contact Ms. Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. Email:
On March 27, 2012, the U.S. Department of Energy (DOE) published in the
Recently, after the closing of the comment period, DOE has received comments on this rulemaking from interested parties. These comments submit additional information for DOE to consider as part of its evaluation of potential standards for battery chargers and EPSs. In order to consider comments previously submitted after the close of the earlier comment period and to allow interested parties to submit comments on the NOPR, DOE has determined that a re-opening of the comment period in this rulemaking is appropriate and is hereby doing so. DOE will consider any comments received between March 27, 2012 and July 16, 2012 to be timely submitted.
Under 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: one copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) for the Sikorsky Aircraft Corporation-manufactured Model S-64F helicopters, now under the Erickson Air-Crane Incorporated (Erickson) Model S-64F type certificate. That AD currently requires inspections, rework, and replacement, if necessary, of the main gearbox (MGB) second stage lower planetary plate (plate). Since we issued that AD, the manufacturer has conducted a configuration review and analysis, and a review of the service history of certain components. The proposed actions are intended to establish life limits for certain components, remove various parts from service, and require consistency in the part numbers of certain four bladed tail rotor (T/R) assemblies to prevent fatigue cracking, failure from static overload, and subsequent loss of control of the helicopter.
We must receive comments on this proposed AD by August 28, 2012.
You may send comments by any of the following methods:
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You may examine the AD docket on the Internet at
For service information identified in this proposed AD, contact Erickson Air-Crane Incorporated, ATTN: Chris Erickson/Compliance Officer, 3100 Willow Springs Rd, P.O. Box 3247, Central Point, OR 97502, telephone (541) 664-5544, fax (541) 664-2312, email address
Michael Kohner, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Certification Office, Fort Worth, Texas 76137, telephone (817) 222-5170, email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
On May 9, 1997, we issued AD 97-10-15, Amendment 39-10028 (62 FR 28321, May 23, 1997), for the Sikorsky Aircraft-manufactured Model S-64F helicopters (now under the Erickson Model S-64F helicopter type certificate) with a plate, P/N 6435-20516-101, with 2,000 or more hours time-in-service (TIS). That AD requires, before the first flight of each day, inspecting the MGB main oil filter for magnesium contamination, and if magnesium contamination is present, replacing the MGB assembly. That AD also requires inspecting the MGB assembly within 100 hours TIS, and thereafter at intervals not to exceed 500 hours TIS, and if necessary, replacing the MGB assembly. Finally, that AD requires, at the next overhaul of the MGB assembly, inspecting and reworking the plate. That action was prompted by two incidents in which the plate was found cracked. The requirements of that AD are intended to prevent failure of the plate due to fatigue cracking, which could lead to failure of the MGB and subsequent loss of control of the helicopter.
Since we issued AD 97-10-15, Erickson has performed additional analysis as a part of a configuration review and has also reviewed the service history of certain components. Erickson determined that certain life-limits and other maintenance requirements need to be revised, and released Erickson Service Bulletin (SB) No. 64F General-1, Revision 17, dated August 17, 2010 (SB No. 64F General-1, Rev. 17). We have reviewed this SB and have determined that the retirement lives of certain parts need to be revised. We have also determined that certain parts, including the plate, P/N 6435-20516-101, which is the subject of the existing AD, should be removed from service and should no longer be eligible for installation on these helicopters.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or
SB No. 64F General-1, Rev. 17, contains the Airworthiness Limitations Schedule for the Model S-64F helicopter and lists the parts and assemblies with their specified retirement lives.
This AD proposes to reduce or establish the life limits for certain flight-critical components, remove other parts with service difficulties from service, and require that T/R blade assembly P/N 65160-00001-048 be installed only as a set of four and not be installed with another part-numbered blade. The requirements in current AD 97-10-15 would be superseded and the part-numbered planetary plate, which is the subject of that AD, would be removed from service. This proposed AD would require, before further flight, a change in the life-limit for the following components:
• Main Rotor (M/R) Blade Assembly, P/N 6415-20601-045;
• Main Transmission Support Beam Assembly, LH, P/N 6420-62363-045;
• Main Transmission Support Beam Assembly, RH, P/N 6420-62363-046;
• Left Splice Fitting (Transition Fitting), Rotary, Rudder Boom, P/N 6420-66341-101;
• Right Splice Fitting (Transition Fitting), Rotary, Rudder Boom, P/N 6420-66341 102;
• M/R Drive Shaft, P/N 6435-20536-101;
• Pressure Plate Assembly, Rotary Wing Head, P/N 65101-11016-042;
• Horn and Liner Assembly, P/N 65102-11047-041;
• Lower Hub Plate Assembly, P/N 65103-11009-041;
• Horizontal Hinge Pin, Rotary Wing Head, P/N 65103-11020-103;
• Damper Bracket Assembly, Rotary Wing Head, P/N 65103-11032-043;
• Hub Subassembly, Rotary Wing, P/N 65103-11310-043;
• Shaft Assembly, Pitch Control Tail Gearbox, P/N 65358-07035-043; and
• Rod End Assembly, Primary Servo Assembly, P/N 65652-11212-041.
In addition to proposing new or revised life limits for certain flight-critical components, this AD also proposes to remove the following components from service due to service difficulties:
• Spindle Assembly, Rotary Rudder, P/N 6410-30302-041;
• MGB Second Stage Lower Planetary Plate, P/N 6435-20516-101 or 6435-20516-102;
• Bracket Assembly, Main Servo, P/N 6435-20527-041 or 6435-20527-042;
• Primary Servo Link Assembly, Tandem Servo, M/R, P/N 6465-62161-042;
• Shoulder Bolt, T/R, P/N 65111-07001-102; and
• T/R Blade Assembly, P/N 65161-00001-041.
This proposed AD contains only a portion of the life-limited parts for this model helicopter, and is not an all-inclusive list.
We estimate that this proposed AD would affect 7 helicopters of U.S. Registry and estimate, at an average labor rate of $85 per hour, the following costs for removing from service the parts listed in Table 2 of this proposed AD action:
• Reviewing helicopter records to determine if an affected part is installed will require approximately 2 work-hours, for a cost per helicopter of $170 and a fleet cost of $1,190.
• Replacing the rotary rudder spindle assembly will require 10 work-hours and a parts cost of $2,787, for a cost per helicopter of $3,637 and a fleet cost of $25,459.
• Replacing the plate will require 40 work-hours and a parts cost of $43,750, for a cost per helicopter of $47,150 and a fleet cost of $330,050.
• Replacing the main servo bracket assembly will require 2 work-hours and a parts cost of $5,223, for a cost per helicopter of $5,393 and a fleet cost of $37,751.
• Replacing the primary servo link assembly of the M/R tandem servo will require 10 work-hours and a parts cost of $14,533, for a cost per helicopter of $15,383 and a fleet cost of $107,681.
• Replacing the T/R shoulder bolt will require 10 work-hours and a parts cost of $571, for a cost per helicopter of $1,421 and a fleet cost of $9,947.
• Replacing the T/R Blade Assembly will require 8 work-hours and a parts cost of $125,765 for a cost per helicopter of $126,445 and a fleet cost of $885,115.
• The total cost to replace the parts that are proposed to be removed from service is estimated to be $199,599 per helicopter and a fleet cost of $1,397,193.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-10028 (62 FR 28321, May 23, 1997), and adding the following new AD:
This AD applies to Sikorsky Aircraft Corporation-manufactured Model S-64F helicopters, now under the Erickson Air-Crane Incorporated Model S-64F type certificate, certificated in any category.
This AD defines the unsafe condition as a fatigue crack in a flight critical component. This condition could result in component failure from static overload and subsequent loss of control of the helicopter.
This AD supersedes AD 97-10-15, Amendment 39-10028 (62 FR 28321, May 23, 1997).
You are responsible for performing each action required by this AD within the specified compliance time unless accomplished previously.
(1) Before further flight:
(i) Remove from service any part with a number of hours time-in-service (TIS) equal to or greater than the part's retirement life as stated in following Table 1 of this AD.
The list of parts in Table 1 of this AD contains only a portion of the life-limited parts for this model helicopter and is not an all-inclusive list.
(ii) Revise the retirement life of each part as shown in Table 1 of this AD by making pen and ink changes or by inserting a copy of this AD into the Airworthiness Limitations section of the maintenance manual.
(iii) Record on the component history card or equivalent record the retirement life for each part as shown in Table 1 of this AD.
(2) Before further flight, remove from service any part with a P/N listed in the following Table 2 of this AD, regardless of the part's TIS. The P/Ns listed in Table 2 of this AD are not eligible for installation on any helicopter.
(3) Before further flight, if a T/R blade assembly, P/N 65160-00001-048, is installed, remove any of the other three T/R blade assemblies that have a different P/N and replace it with a T/R blade assembly, P/N 65160-00001-048. The T/R blade assembly, P/N 65160-00001-048, must be installed in sets of four only.
(1) The Manager, Rotorcraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Michael Kohner, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Certification Office, Fort Worth, Texas, 76137, telephone (817) 222-5170, email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Erickson Service Bulletin No. 64F General-1, Revision 17, dated August 17, 2010, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Erickson Air-Crane Incorporated, ATTN: Chris Erickson/Compliance Officer, 3100 Willow Springs Rd, PO Box 3247, Central Point, OR 97502, telephone (541) 664-5544, fax (541) 664-2312, email address
Joint Aircraft Service Component (JASC) Code: 6300: Main Rotor Drive System and 6400: Tail Rotor System.
Office of the Secretary (OST), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The Department is proposing to amend its existing rule regarding the reporting of incidents involving animals during air transport, 14 CFR 234.13, to expand the reporting requirement to U.S. carriers that operate scheduled service with at least one aircraft with a design capacity of more than 60 seats, to expand the definition of “animal” to include all cats and dogs transported by the carrier, regardless of whether the cat or dog is transported as a pet by its owner or as part of a commercial shipment (e.g., shipped by a breeder), and to require all covered carriers to provide in their December reports the total number of animals that were lost, injured, or died during air transport. We also seek comment on requiring carriers to report the total number of animals transported in the calendar year in the December reports.
Comments should be filed by August 28, 2012. Late-filed comments will be considered to the extent practicable.
You may file comments identified by the docket number DOT-OST-2010-0211 by any of the following methods:
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Vinh Q. Nguyen, Trial Attorney, Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax),
The current rule regarding reporting of incidents involving animals during air transport derives from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century or “AIR-21” (Pub. L. 106-181), which was signed into law on April 5, 2000. It included section 710, “Reports by Carriers on Incidents Involving Animals During Air Transport,” and was codified as 49 U.S.C. 41721. Section 41721 contains the following provisions:
(a)
(d)
(e)
On August 11, 2003, DOT, through its Federal Aviation Administration (FAA), issued a final rule implementing section 710 of AIR-21.
Section 234.13 requires air carriers that provide scheduled passenger air transportation to submit a report to the ACPD on any incidents involving the loss, injury, or death of an animal during air transportation within 15 days of the end of the month during which the incident occurred. It defines “animal” as any warm- or cold-blooded animal which, at the time of transportation, is being kept as a pet in a family household in the United States. The air transport of an animal covers the
On August 10, 2010, Senators Richard Durbin, Robert Menendez, and Joseph Lieberman wrote to the Secretary of Transportation urging the Department to amend the rule so that airlines would be required to report all incidents involving the loss, injury, or death of cats and dogs that occur while they are traveling in an airline's care, custody, or control, regardless of whether the cat or dog is being transported as a pet by its owner or as part of a commercial shipment. In addition to the letter, the Department received a petition for rulemaking on this matter from the Animal Legal Defense Fund (ALDF), an advocacy group which works to protect the lives and advance the interest of animals through the legal system. In its petition, ALDF requests that the Department's regulation requiring the reporting of loss, injury, or death of animals in air transport be revised to require airlines to report any such incident involving animals they carry. It contends that the data that are currently collected by the Department capture only incidents affecting pets, even though pets make up only part of the total number of animals transported by airlines. The ALDF's proposal would apply to all species of animals, not just cats and dogs.
This NPRM proposes to expand the applicability of the rule to require all U.S. carriers that operate scheduled service with at least one aircraft with a design capacity of more than 60 passenger seats to submit a report to the ACPD on any incidents involving the loss, injury, or death of an animal during air transportation within 15 days after the end of the month during which the incident occurred. Under the current rule, most of the reports on incidents involving animals during air transport have been submitted by “reporting carriers,” as defined in 14 CFR 234.2. At the present time, there are 15 “reporting carriers.” These airlines account for the vast majority of domestic traffic. Nevertheless, we believe that it is important to expand the requirement to all carriers that operate scheduled service with at least one aircraft with a design capacity of more than 60 seats to provide consumers and other interested parties a more complete picture of the treatment of animals on scheduled passenger flights. By expanding the applicability from the reporting carriers (i.e., U.S. carriers that account for at least 1 percent of domestic scheduled passenger revenue) to U.S. carriers that operate domestic or international scheduled passenger service with at least one aircraft with more than 60 seats, we would be requiring reports of loss, injury or death of an animal from 36 carriers instead of only 15 carriers. These 36 carriers carry about 99.6 percent of domestic passengers and 98 percent of international passengers that travel on U.S. airlines.
Consistent with section 605 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), we are not proposing to expand this rule to carriers that operate scheduled service with only aircraft that have a design capacity of 60 seats or less as these carriers are considered small businesses.
The existing rule defines an animal as a pet in a family household. The NPRM proposes to expand this definition to include cats and dogs that are part of a commercial shipment. More specifically, the NPRM proposes to retain that portion of the definition of “animal” that refers to any warm- or cold-blooded animal which, at the time of transportation, is being kept as a pet in a family household in the United States and add to this definition “and any dog or cat which, at the time of transportation, is shipped as part of a commercial shipment on a scheduled passenger flight.”
We are proposing this expansion in the definition of an animal because dogs and cats that are being shipped on scheduled passenger flights other than as pets by their owners are likely being transported for the purpose of being sold as a pet in a family household in the United States. Moreover, based on the data we collected of loss, injury or death of household pets transported in commercial aviation from May 2005 to November 2011, we found that virtually all of the reports of deaths (95%), injuries (100%), and loss (98%) involved cats and dogs. Nevertheless, we seek comment on whether the definition of an animal should be expanded further to include not only dogs and cats in commercial shipments but all species of animals in commercial air transportation. We are seeking comment, rather than proposing specific language, on expanding the definition of an animal to apply to all species of animals, as suggested by the Animal Legal Defense Fund. We are not proposing language at this time for two reasons. First, the overwhelming majority of losses, injuries, and deaths of household pets reported to DOT by airlines have involved cats and dogs. Second, the legislative history of AIR-21 does not appear to show an intent to require reporting of incidents involving commercial shipment of animals such as fish and birds that are being shipped from breeders/wholesalers to retailers. The rule would continue not to cover animals that accompany a passenger at his or her seat in the cabin as the air carrier does not take custody of such animals. In any event, the likelihood of the loss, injury, or death of such animals is very minimal.
We further propose in this NPRM to require each covered carrier to provide in its December report a summary of the total number of animal losses, injuries, and deaths and the total number of
We ask commenters to provide the following information to assist our consideration of the question of requiring carriers to report the total number of animals transported. How many cats, dogs and other household pets are currently transported per year on scheduled flights of U.S. air carriers? Has this number been increasing or decreasing in recent years? Are current procedures for tracking animal incidents adequate for tracking the total number of animals transported? If yes, then what additional annual costs would be involved for tracking the total number of animals transported? If not, what new procedures would need to be put in place? What exactly would be involved? In terms of costs: What are the set-up costs for such a system? What are annual costs of running it? Are the annual costs fixed or do they depend on the number of animals transported? Please describe capital costs, labor hours, and other costs separately.
In order to limit the burden on the covered carriers, we seek comment on whether we should require covered carriers to report only once per year in the December reports on the total number of animals transported during the previous year, or whether the total number of animals transported should be reported each month. We also solicit comment on whether carriers should be required to file negative reports even if the carrier did not have any incidents involving the loss, injury, or death of an animal during a particular month or year —i.e., reporting “0” for any reporting category where there were no such incidents. Negative reports would require carriers to affirmatively certify that there were no reportable animal incidents during that period; they are an additional incentive to ensure that the reports are complete and accurate. We also invite interested persons to comment on whether the Department should continue not requiring carriers to file negative monthly reports of animal incidents (i.e., not requiring reports stating there were no incidents of death, loss, or injury of an animal).
The Department is seeking comment on these issues. Our final action will be based on the comments and supporting evidence filed in this docket and on our own analysis.
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 action has been determined not to be significant under Executive Order 12866 and DOT's Regulatory Policies and Procedures and was not reviewed by the Office of Management and Budget (OMB). The costs associated with this rule would be minimal.
The cost of filing monthly reports would be minimal. Aside from the December report, a carrier would be required to report only during the months where the carrier experiences a reportable animal incident. Currently, 15 of the 36 carriers that would be affected are already required to collect information on incidents involving the loss, injury, or death of an animal. For these 15 carriers, who account for approximately 90 percent of the domestic market, there would be no additional costs. For the 21 other carriers who do not currently have to report, the cost would vary depending on whether or not there is a reportable incident during any given month. For example, if a carrier experiences no reportable incidents all year, then the recurrent cost of filing monthly reports for January to November is $0. However, if the carrier experiences a reportable incident every month of the year, the cost would be $401.52. This is based on our estimate that it would take a Paralegal working in scheduled air transportation making $33.46 (the average wage rate plus benefits) one hour to prepare and submit one monthly report. So, if all 21 carriers, who do not currently have to report, each experience a reportable incident every month of the year, the total cost would be $8,431.92. Therefore, the cost of monthly reports would be between $0 and $8,431.92 per year depending on the number of reportable incidents. Even the high estimate would still be a minimal cost.
All covered carriers would be required to submit a December report. However, the burden on covered carriers to submit a December report that includes the total number of animals that were lost, injured, or died during air transport would be minimal. This report would merely be an arithmetic total of the values in any report that a covered carrier filed throughout the year.
The cost of the proposed expanded definition of an animal would impact airlines, but the cost would still be minimal. Since 2006, the average number of reported incidents per year is 46. If we were to assume that it takes a Paralegal one hour to prepare and submit a report per incident, then we have estimated that the cost to the industry is $1540 per year. This is based on our estimate of a Paralegal's salary discussed above. Various trade sources indicate that dogs and cats transported as part of a commercial shipment may account for as much as half of all dogs, cats, and other household pets that are transported by covered carriers. If we were to assume that expanding the definition to include dogs and cats transported as part of a commercial shipment would result in an additional 46 reported incidents per year (i.e., a total of 92 incidents), the additional cost of $1540 is still minimal.
The benefits of the rule, while difficult to quantify, exceed the costs. Good data are not immediately available as to the total number of animals that air carriers currently transport. Neither trade associations for animal transportation providers nor airlines collect data on the number of animals transported annually by air. Trade association (e.g., pet transportation
A copy of the preliminary regulatory evaluation has been placed in the docket. We invite comment on the quantification of costs and benefits for this proposed requirement, as well as the methodology used to develop our cost and benefit estimates. We also seek comment on how unquantified costs and benefits could be measured.
Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), I certify that this rulemaking would not have a significant economic impact on a substantial number of small entities. The NPRM would impose no new duties or obligations on small entities. As discussed above, consistent with the RFA, as amended by the SBREFA, we are not proposing to expand this rule to carriers that operate scheduled service with only aircraft that have a design capacity of 60 seats or less as these carriers are considered small businesses.
This action would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore will not have federalism implications.
This notice has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because the provision on which we are seeking comment would not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.
In accordance with the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 49 U.S.C. 3501 et seq.), the Department is seeking to renew with change the information collection titled “Reports by Carriers on Incidents Involving Animals During Air Transport” (OMB No. 2105-055). This information collection expired on June 6, 2011. This NPRM proposes to modify the information collection requirement. Under the Paperwork Reduction Act, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the
The collection of information proposed in the NPRM is a requirement that U.S. carriers that operate scheduled passenger service with at least one aircraft having a designed seating capacity of more than 60 passenger seats report to the Department's ACPD any incidents involving the loss, injury, or death during air transport of cats and dogs that were part of a commercial shipment. (Cats and dogs that were being kept as a household pet at the time of such a loss, injury, or death are already required to be reported by these airlines.) As discussed above, this requirement would expand the reporting requirement from 15 carriers to 36 carriers, an increase of 21 carriers. We also propose to require covered carriers to state in their report for the month of December the total number of animals that were lost, injured, or died during air transport. We solicit comment on whether we should also require carriers to provide information about the total number of animals transported in the calendar year.
The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.
Air carrier, Animal incidents, Consumer protection, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Department of Transportation proposes to amend 14 CFR chapter II as follows:
1. The authority citation for part 234 continues to read as follows:
49 U.S.C. 329 and Sections 41708 and 41709.
2. Section 234.13 is removed.
3. A new part 235 is added to read as follows:
49 U.S.C. 41721.
For the purposes of this part:
This part applies to the scheduled domestic and international passenger service of any U.S. air carrier that operates such service with at least one aircraft having a designed seating capacity of more than 60 passenger seats.
(a) Each covered carrier shall, within 15 days after the end of the month to which the information applies, submit to the United States Department of Transportation's Aviation Consumer Protection Division a report on any incidents involving the loss, injury, or death of an animal during air transport provided by the air carrier, including incidents on flights by that carrier that are operated with aircraft having 60 or fewer seats. The report shall be made in the form and manner set forth in reporting directives issued by the Deputy General Counsel for the U.S. Department of Transportation and shall contain the following information:
(1) Carrier and flight number;
(2) Date and time of the incident;
(3) Description of the animal, including name, if applicable;
(4) Name and contact information of the owner(s), guardian and/or shipper of the animal;
(5) Narrative description of the incident;
(6) Narrative description of the cause of the incident;
(7) Narrative description of any corrective action taken in response to the incident; and
(8) Name, title, address, and telephone number of the individual filing the report on behalf of the air carrier.
(b) Within 15 days after the end of December of each year, each covered carrier shall submit the following information (this information may be included in any report that the carrier may file for the loss, injury, or death of animals during the month of December):
(1) The total number of incidents involving an animal during air transport provided by the air carrier for the entire calendar year, including incidents on flights by that carrier that are operated with aircraft having 60 or fewer seats. The report shall include subtotals for loss, injury, and death of animals. Report “0” for any category for which there were no such incidents. If the carrier had no reportable incidents for that calendar year, it shall report “0” in each category.
(2) The December report must contain the following certification signed by your authorized representative: “I, the undersigned, do certify that this report has been prepared under my direction in accordance with the regulations in 14 CFR Part 235. I affirm that, to the best of my knowledge and belief, this is a true, correct and complete report.”
Consumer Product Safety Commission.
Proposed Statement of Policy on Animal Testing
The Consumer Product Safety Commission (CPSC or Commission) proposes to codify its statement of policy on animal testing, as amended, which was previously published in the
Written comments and submissions in response to this notice must be received by September 12, 2012.
You may submit comments, identified by Docket No. CPSC-2012-0037, by any of the following methods:
Submit electronic comments in the following way:
To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (email) except through
Submit written submissions in the following way:
Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.
Leslie E. Patton, Ph.D., Project Manager, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7848;
The Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1261-1278, requires appropriate cautionary labeling on certain hazardous household products to alert consumers to the potential hazards that a product may present. Among the hazards addressed by the FHSA are products that are toxic, corrosive, irritants, flammable, combustible, or strong sensitizers. The FHSA and the Commission regulations at 16 CFR part 1500 provide certain test methods related to testing on animals to determine the existence of the hazards addressed by the FHSA.
On May 30, 1984, the Commission adopted an animal testing policy that minimized the number of test animals required for toxicity testing and clarified when animal testing might be needed (1984 Policy) published in the
Since the 1984 Policy, there have been new methods accepted by the scientific community as replacements or adjuncts to animal tests for predictions of toxicity and irritancy. Such developments in testing have been made in recent years, particularly since the National Institutes of Health Revitalization Act was passed in 1993 (Pub. L. 103-43, Section 1301), directing the National Institute of Environmental Health Sciences (NIEHS) to establish a method and criteria for the validation and regulatory acceptance of alternative testing methods. The NIEHS created the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM;
ICCVAM submits recommendations for a test method to federal agencies that require or recommend acute or chronic toxicological testing. According to Public Law 106-545, these agencies should promote and encourage the development and use of alternatives to animal test methods for regulatory purposes, and ensure that any new or revised acute or chronic toxicity test method is valid for its proposed use. Federal agencies have 180 days from the time of submission to identify any relevant test methods for which the ICCVAM test recommendations may be added or substituted, review such test recommendations, and notify ICCVAM if they will adopt the ICCVAM test recommendations. Since 2003, the Commission has approved, where applicable, the recommendations made by ICCVAM to reduce and refine animal testing applicable to test methods under the FHSA. In order to make the ICCVAM recommendations and Commission's animal testing policy more accessible and transparent to interested parties, the Commission proposes to update its regulations on animal testing at 16 C.F.R. part 1500, published elsewhere in this
In addition, the Commission proposes to update its statement on animal testing policy to reflect the ICCVAM recommendations that have been reviewed and adopted by the CPSC as being appropriate tests for assessing hazards under the FHSA. In order to make this statement of policy more accessible and transparent to interested parties, the Commission proposes to codify the policy at 16 CFR 1500.232.
Since this is a statement of policy, a delayed effective date is not required. 5 U.S.C. 553(d)(2). A delayed effective date is not required for the additional reason that this policy is not a substantive rule. 5 U.S.C. 553(d)(3). Accordingly, this codification will become effective upon the publication of a final policy statement in the
Consumer protection, Hazardous substances, Imports, Infants and children, Labeling, Law enforcement, Reporting and recordkeeping requirements, and Toys.
For the reasons given above, the Commission proposes to amend 16 CFR part 1500 as follows:
1. The authority for part 1500 continues to read as follows:
15 U.S.C. 1261-1278, 122 Stat. 3016; the Consumer Product Safety Improvement Act of 2008, Pub. L. 110-314, § 104, 122 Stat. 3016 (August 14, 2008).
2. Add a new section 1500.232 to read as follows:
(1) The U.S. Consumer Product Safety Commission issues this statement of policy on animal testing and alternatives to animal testing of hazardous substances regulated under the Federal Hazardous Substances Act (FHSA). The FHSA requires appropriate cautionary labeling on certain household products to alert consumers to the potential hazard(s) that the products may present. Among the hazards addressed by the FHSA are toxicity, corrosivity, sensitization, and irritation.
(2) In order to determine the appropriate cautionary labeling, it is necessary to have objective criteria by which the existence of each hazard can be determined. Hazards such as toxicity, tissue corrosiveness, eye irritancy, and skin irritancy result from the biological response of living tissue and organs to the presence of the hazardous substance. One means of characterizing these hazards is to use animal testing as a proxy for the human reaction. In fact, the FHSA defines the hazard category of “
(3) Neither the FHSA nor the Commission's regulations
(4) In making the appropriate hazard determinations, manufacturers of products subject to the FHSA should use existing alternatives to animal testing whenever possible. These include prior human experience, literature sources that record the results of prior animal testing or limited human tests, and expert opinion. The Commission recommends resorting to animal testing only when the other information sources have been exhausted. At this time, the Commission recommends use of the most humane procedures with the fewest animals possible to achieve reliable results. Recommended procedures are summarized in the following statement and can be accessed on the Commission's Web page at:
(1) The Commission reviews staff recommendations on alternative test methods developed by the scientific and regulatory communities. Current descriptions of test method recommendations approved by the Commission can be accessed via the Internet at:
(i)
(ii) Valid
(iii) A sequential version of the traditional LD
(iv) A limit-dose test, where the LD
(i) In a tiered
(ii) If a tiered test is not feasible, the Commission recommends the test method described in § 1500.41. Note that in any
(i) When the weight-of-evidence is insufficient to determine a substance's ocular irritation, a Commission-approved
(ii) If the dermal test strategy outlined in section (b)(ii) leads to a conclusion of
(iii) When any ocular irritancy testing on animals is considered necessary, including the method described in § 1500.42, the Commission recommends a threefold plan to reduce animal suffering: (1) The use of preemptive pain management, including topical anesthetics and systemic analgesics that eliminate or reduce suffering that may occur as a result of the application process or from the test substance itself; (2) post-treatment with systemic analgesics for pain relief; and (3) implementation of humane endpoints, including scheduled observations,
Consumer Product Safety Commission.
Notice of proposed rulemaking.
The U.S. Consumer Product Safety Commission (CPSC or Commission) proposes to amend and to update regulations on the CPSC's animal testing methods under the Federal Hazardous Substances Act (FHSA).
Written comments must be received by September 12, 2012.
You may submit comments identified by Docket No. CPSC-2012-0036, by any of the following methods:
Submit electronic comments in the following way:
To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (email) except through
Submit written submissions in the following way:
Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.
Leslie E. Patton, Ph.D., Project Manager, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7848;
The Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1261-1278, requires appropriate cautionary labeling on certain hazardous household products to alert consumers to the potential hazards that a product may present. Among the hazards addressed by the FHSA are products that are toxic, corrosive, irritants, flammable, combustible, or strong sensitizers. The FHSA and the Commission regulations at 16 CFR part 1500 provide certain test methods related to testing on animals to determine the existence of the hazards addressed by the FHSA.
On May 30, 1984, the Commission adopted an animal testing policy that minimized the number of test animals required for toxicity testing and clarified when animal testing might be needed (1984 Policy) (49 FR 22522). These guidelines advised product manufacturers to use alternatives to animal testing whenever possible, including: (1) Prior human experience, (2) existing animal or limited human test results, and (3) expert opinion. The 1984 Policy stated:
It is important to keep in mind that neither the FHSA nor the Commission's regulations require any firm to perform animal tests. The statute and its implementing regulations only require that a product be labeled to reflect the hazards associated with that product. While animal testing may be necessary in some cases, Commission policy supports limiting such tests to the lowest feasible number and taking every feasible step to eliminate or reduce the pain or discomfort that can be associated with such tests. * * * The Commission resorts to animal testing only when the other information sources have been exhausted. Furthermore, the FHSA regulations, at 16 CFR 1500.4, clearly state that reliable human experience shall take precedence over different results from animal data.
Since the 1984 Policy, there have been new methods accepted by the scientific community as replacements or adjuncts to animal tests for predictions of toxicity and irritancy. Such developments in testing have been made in recent years, particularly since the National Institutes of Health Revitalization Act was passed in 1993 (Pub. L. 103-43, Section 1301), directing the National Institute of Environmental Health Sciences (NIEHS) to establish a method and criteria for the validation and regulatory acceptance of alternative testing methods. The NIEHS created the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM;
ICCVAM submits recommendations for a test method to federal agencies that require or recommend acute or chronic toxicological testing. According to Public Law 106-545, these agencies should promote and encourage the development and use of alternatives to animal test methods for regulatory purposes, and ensure that any new or revised acute or chronic toxicity test method is valid for its proposed use. Federal agencies have 180 days from the
In addition, to reflect more accurately the ICCVAM recommendations and updated test methods approved by the Commission, this proposed rule amends the Commission's regulations that interpret, supplement, or provide alternatives to definitions on animal test methods used to aid in the classification of hazardous substances under the FHSA.
All of the proposed amendments to 16 CFR part 1500 clarify or add language to explain that alternative test methods exist that avoid or reduce animal testing, which have been approved by the Commission.
Currently, the test methods in section 1500.3(c)(1)(ii) A-C, used in the definitions of oral, inhalation, and dermal toxicity, respectively, each describe a method for defining a substance as
(i) A substance determined by the Commission to be highly toxic on the basis of human experience; and/or (ii) A substance that produces death within 14 days in half or more than half of a group of: (A) White rats (each weighing between 200 and 300 grams) when a single dose of 50 milligrams or less per kilogram of body weight is administered orally; (B) White rats (each weighing between 200 and 300 grams) when a concentration of 200 parts per million by volume or less of gas or vapor, or 2 milligrams per liter by volume or less of mist or dust, is inhaled continuously for 1 hour or less, if such concentration is likely to be encountered by man when the substance is used in any reasonably foreseeable manner; and/or (C) Rabbits (each weighing between 2.3 and 3.0 kilograms) when a dosage of 200 milligrams or less per kilogram of body weight is administered by continuous contact with the bare skin for 24 hours or less by the method described in § 1500.40. The number of animals tested must be sufficient to give a statistically significant result and shall be in conformity with good pharmacological practices.
The proposed amendment makes clear that the animal tests are not the only means to test or define a product's toxicity under the FHSA, nor are they the only methods used by the CPSC to assess product toxicity. Because there are other Commission-approved test methods that may be used by CPSC staff or the public for toxicity testing and defining a substance as highly toxic, as reflected in the ICCVAM recommendations and outlined in the CPSC'statement of policy on animal testing published elsewhere in this
Currently, the test methods in section 1500.3(c)(2)(i) A-C, used in the definitions of oral, inhalation, and dermal toxicity, respectively, each describe a method for defining a substance as
(i) Any substance that produces death within 14 days in half or more than half of a group of: (A) White rats (each weighing between 200 and 300 grams) when a single dose of 50 milligrams to 5 grams per kilogram of body weight is administered orally. Substances falling in the toxicity range between 500 milligrams and 5 grams per kilogram of body weight will be considered for exemption from some or all of the labeling requirements of the act, under § 1500.82, upon a showing that such labeling is not needed because of the physical form of the substances (solid, a thick plastic, emulsion, etc.), the size or closure of the container, human experience with the article, or any other relevant factors; and/or (B) White rats (each weighing between 200 and 300 grams) when a concentration of more than 200 parts per million but not more than 20,000 parts per million by volume of gas or vapor, or more than 2 but not more than 200 milligrams per liter by volume of mist or dust, is inhaled continuously for 1 hour or less, if such concentration is likely to be encountered by man when the substance is used in any reasonably foreseeable manner; and/or (C) Rabbits (each weighing between 2.3 and 3.0 kilograms) when a dosage of more than 200 milligrams but not more than 2 grams per kilogram of body weight is administered by continuous contact with the bare skin for 24 hours by the method described in § 1500.40. The number of animals tested must be sufficient to give a statistically significant result and shall be in conformity with good pharmacological practices.
The proposed amendment makes clear that the animal tests are not the only means to test or define a product's toxicity under the FHSA, nor are they the only methods used by the CPSC to assess product toxicity. Because there are other Commission-approved test methods that may be used by CPSC staff or the public for toxicity testing and defining a substance as
16 CFR 1500.3(c)(3) currently states that: Corrosive means a substance that causes visible destruction or irreversible alterations in the tissue at the site of contact. A test for a corrosive substance is whether, by human experience, such tissue destruction occurs at the site of application. A substance would be considered corrosive to the skin if, when tested on the intact skin of the albino rabbit by the technique described in § 1500.41, the structure of the tissue at the site of contact is destroyed or changed irreversibly in 24 hours or less. Other appropriate tests should be applied when contact of the substance with other than skin tissue is being considered.
The method of testing described in § 1500.41 is a test for acute dermal toxicity. The proposed rule amends this definition to make explicit that the animal testing is not the only testing method used or accepted by the CPSC, or the preferred method. Accordingly, the proposed rule adds the following text (in underline) to section 16 CFR 1500.3(c)(3):
Corrosive means a substance that causes visible destruction or irreversible alterations in the tissue at the site of contact. A test for a corrosive substance is whether, by human experience, such tissue destruction occurs at the site of application. A substance would be considered corrosive to the skin
Currently, 16 CFR 1500.3(c)(4) provides that the test methods for
The proposed rule clarifies that the method for testing for irritant substances should not be based solely on these specific animal tests because there are other scientifically valid ways of testing for irritants, including methods that do not use animals. Accordingly, the proposed rule adds the following text (in underline) to section 1500.3(c)(4):
The definition of irritant in section 2(j) of the act (restated in paragraph (b)(8) of this section) is supplemented by the following:
The method of testing toxic substances is set forth under 16 CFR 1500.40. This method details an acute dermal toxicity assay using rabbits. The method is referenced in § 1500.3(c)(1)(ii)(C) and § 1500.3(c)(2)(C). Although the method described in § 1500.40 is one way of assessing a substance's acute dermal toxicity, this method is not mandatory, and it is not the only or preferred method for evaluating dermal toxicity. Accordingly, the proposed rule adds the following text (in underline) to § 1500.40 immediately after the heading titled, “Method of testing toxic substances”:
The method of testing primary irritant substances is set forth under 16 CFR 1500.41. This method details an acute dermal toxicity assay using rabbits. The method is referenced in §§ 1500.3(c)(3) and 1500.3(c)(4). Although the method described in § 1500.41 is one way of assessing a substance's dermal irritation/corrosivity, this method is not mandatory, and it is not the only or preferred method for evaluating a substance's dermal irritation/corrosivity. Accordingly, the proposed rule adds the following text (in underline) to § 1500.41 immediately after the heading titled, “Method of testing primary irritant substances”:
Section 1500.42 of 16 CFR provides a detailed animal test for eye irritation. The method is referenced in § 1500.3(c)(4), which defines
(a)(1)
The proposed rule eliminates the reference in § 1500.42(c) to the “Illustrated Guide for Grading Eye Irritation by Hazardous Substances,” and the accompanying note. The referenced guide is out of print, and photocopies are rare. Instead, the proposed rule amends § 1500.42(c) to reference guidelines from the U.S. Environmental Protection Agency (EPA) and the Organisation for Economic Co-operation and Development (OECD) as follows:
To assist testing laboratories and others interested in interpreting ocular irritation test results, the CPSC animal testing policy Web page at
Under the Regulatory Flexibility Act (RFA), when an agency issues a proposed rule, it generally must prepare an initial regulatory flexibility analysis describing the impact the proposed rule is expected to have on small entities. 5 U.S.C. 603. The RFA does not require a regulatory flexibility analysis if the head of the agency certifies that the rule will not have a significant effect on a substantial number of small entities.
The Commission's Directorate for Economic Analysis prepared a preliminary assessment of the impact of amending the regulations on animal testing. That assessment found that there would be little or no effect on small businesses and other entities because the proposed amendments will not result in product modifications in order to comply, and they will not result in additional testing or recordkeeping burdens. Based on the foregoing assessment, the Commission preliminarily finds that the proposed rule would not have a significant impact on a substantial number of small entities.
Generally, CPSC rules are considered to “have little or no potential for affecting the human environment,” and environmental assessments and environmental impact statements are not usually prepared for these rules (see 16 CFR 1021.5(c)(1)). The Commission does not expect the proposed rule to have any adverse impact on the environment under this categorical exclusion.
According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. The preemptive effect of regulations such as this proposed rule is stated in section 18 of the FHSA. 15 U.S.C. 1261n.
This rule would not impose any information collection requirements. Accordingly, this rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.
The Administrative Procedure Act generally requires that a substantive rule be published not less than 30 days before its effective date, unless the agency finds, for good cause shown, that a lesser time period is required. 5 U.S.C. 553(d)(3). We propose that the rule would take effect 30 days after publication of a final rule in the
Consumer protection, Hazardous substances, Imports, Infants and children, Labeling, Law enforcement, Reporting and recordkeeping requirements, and Toys.
Accordingly, 16 CFR part 1500 is proposed to be amended as follows:
1. The authority citation for part 1500 continues to reads as follows:
15 U.S.C. 1261-1278, 122 Stat. 3016; the Consumer Product Safety Improvement Act of 2008, Pub. L. 110-314, § 104, 122 Stat. 3016 (August 14, 2008).
2. Amend section 1500.3 by adding new paragraphs (c)(1)(iii) and (c)(2)(iii) and revise paragraphs (c)(3) and (c)(4), to read as follows:
(c) * * *
(1) * * *
(iii) A substance that produces a result of `highly toxic' in any of the approved test methods described in the CPSC's animal testing policy set forth in 16 CFR 1500.232.
(2) * * *
(iii)
(3) Corrosive means a substance that causes visible destruction or irreversible alterations in the tissue at the site of contact. A test for a corrosive substance is whether, by human experience, such tissue destruction occurs at the site of application. A substance would be considered corrosive to the skin if a weight-of-evidence analysis suggests that it is corrosive or if, when tested by the
(4) The definition of irritant in section 2(j) of the act (restated in paragraph (b)(8) of this section) is supplemented by the following:
3. Amend section 1500.40 by revising the introductory text to read as follows:
Guidelines for testing the toxicity of substances, including testing that does not require animals, are presented in the CPSC's animal testing policy set forth in 16 CFR 1500.232. A weight-of-evidence analysis is recommended to evaluate existing information before
4. In § 1500.41, add five sentences at the start of the introductory text to read as follows:
Guidelines for testing the dermal irritation and corrosivity properties of substances, including testing that does not require animals, are presented in the CPSC's animal testing policy set forth in 16 CFR 1500.232. A weight-of-evidence analysis is recommended to evaluate existing information before
5. Amend section 1500.42 by adding introductory text, adding a sentence at the beginning of paragraph (a)(1), and revising paragraph (c) to read as follows:
Guidelines for
(a)(1) In the method of testing the ocular irritation of a substance referred to in § 1500.3(c)(4), six albino rabbits are used for each test substance * * *
(c) To assist testing laboratories and others interested in interpreting ocular irritation test results, the CPSC animal testing policy Web page at
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking; extension of comment period.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) is extending the comment period for Notice No. 127, Proposed Amendment to the Standards of Identity for Distilled Spirits, for an additional 10 days. In Notice No. 127, a notice of proposed rulemaking published in the
Written comments on Notice No. 127 are now due on or before July 9, 2012.
You may send comments on Notice No. 127 to one of the following addresses:
•
•
•
See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of all rulemaking documents, supporting materials, and any comments related to this proposal within Docket No. TTB-2012-0002 at
Christopher M. Thiemann, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Suite 200E, Washington, DC 20005; telephone 202-453-1039, ext. 138.
In Notice No. 127, published in the
The 60-day comment period for Notice No. 127 originally was set to close on June 29, 2012. On June 15, 2012, TTB received a comment from the European Union requesting an extension of the comment period “in order to have time to analyze and prepare comments” on the proposal (see Comment 4 within Docket No. TTB-2012-0002). In response to this request, TTB is extending the comment period for an additional 10 days, and, therefore, comments on Notice No. 127 are now due on or before July 9, 2012.
Michael D. Hoover of the Regulations and Rulings Division drafted this notice.
In proposed rule document 2012-15538, appearing on pages 38022-38024, in the issue of Tuesday, June 26, 2012, make the following correction:
1. On page 38023, column three, § 381.8 is being reprinted in its entirety for corrections to (b)(1)(i) and (ii).
(b)
(i) For such uses in a PBS-distributed program:
(ii) For such uses in other than PBS-distributed programs:
Postal Service
Proposed rule.
The Postal Service is proposing to revise the
Submit comments on or before July 30, 2012.
Mail or deliver written comments to the manager, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW., Room 4446, Washington, DC 20260-5015. You may inspect and photocopy all written comments at USPS® Headquarters Library, 475 L'Enfant Plaza SW., 11th Floor North, Washington, DC, by appointment only between the hours of 9 a.m. and 4 p.m., Monday through Friday. Call 1-202-268-2906 in advance for an appointment. Email comments, containing the name and address of the commenter, may be sent to:
Craig Vance at 202-268-7595, or Kevin Gunther at 202-268-7208.
Prior to January 22, 2012, mailers were required to prepare bundles of flat-size Periodicals in mixed area distribution center (ADC) sacks (or similar containers), labeled according to labeling list L009; and in origin mixed ADC (OMX) sacks (or similar containers), labeled according to labeling list L201. These standards assured that the OMX and the mixed ADC separations were always made, and the sacks that were prepared could then be presented directly for acceptance or placed on pallets in accordance with DMM 705.8.10.2.
The separation of mail destinating within the “OMX” surface reach of the mailer's plant (or entry point) from the remaining mixed ADC mail is crucial for maintaining acceptable service performance, for the benefit of both Periodicals customers and USPS® processing operations.
On January 22, 2012, the Postal Service revised DMM 705.8.10.2 to allow mailers to place bundles of flat-size Periodicals directly onto mixed area distribution center (ADC) and origin mixed ADC (OMX) pallets, but retained the existing language describing these pallet levels as optional. The long-standing language that required the mixed ADC pallet to be labeled in accordance with labeling list L004 was also retained. As a result of this change, some mailers have discontinued the practice of making the mixed ADC and OMX separations when placing bundles of flat-size Periodicals directly on pallets.
It was not the intent of the January 22, 2012 revision to eliminate the requirement to perform the OMX and mixed ADC separations. The Postal Service therefore proposes to revise DMM 705.8.10.2 to provide the option for mailers to prepare both the OMX and mixed ADC pallet at no minimum volume threshold. The Postal Service proposes to require the preparation of both pallets at volumes of 100 pounds or more, and require sacking of these separations if the mailer elects not to form either pallet level below the 100-pound threshold. The Postal Service also proposes that the mixed ADC pallet will be prepared in accordance with labeling list L009 instead of L004, as is currently required. If these new standards are adopted, they will be effective January 28, 2013.
Although these changes are intended to be effective January 28, 2013, to provide for the most expeditious processing of their mixed ADC and OMX Periodicals mailpieces in USPS® networks, mailers are strongly encouraged to begin using these new standards immediately.
Although the Postal Service is exempted by 39 U.S.C. 410(a) from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C 553(b), (c)), we invite public comments on the following proposed revisions to
Administrative practice and procedure, Postal Service.
Accordingly, 39 CFR part 111 is proposed to be amended as follows:
1. The authority citation for 39 CFR part 111 continues to read as follows:
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.
2. Revise the following sections of
j.
k.
1. Line 1: “MXD” followed by the city, state, and ZIP Code information for facility serving 3-digit ZIP Code prefix of entry Post Office as shown in L009, Column A.
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes if the proposal is adopted.
Environmental Protection Agency (EPA).
Proposed rule; correction.
In the Proposed Rules section of today's
Questions concerning the “National Ambient Air Quality Standards for Particulate Matter” proposed rule should be addressed to Ms. Beth Hassett-Sipple, U.S. EPA, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, (C504-06), Research Triangle Park, NC 27711, telephone number (919) 541-4605, email
In today's
Environmental Protection Agency (EPA).
Proposed rule.
In this action we are proposing to approve into the Indiana State Implementation Plan (SIP) the addition of a new rule that sets volatile organic compound (VOC) emissions limits and other restrictions on consumer products that are sold, supplied, manufactured, or offered for sale in the State.
Comments must be received on or before July 30, 2012.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2010-1050, by one of the following methods:
1.
2.
3.
4.
5.
Anthony Maietta, Environmental Protection Specialist, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8777
In the Final Rules section of this
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.
Federal Communications Commission.
Proposal rule; dismissal.
The Audio Division dismisses the petition for rulemaking filed by Alatron Corporation, Inc., proposing the allotment of Channel 228A at Pike Road, Alabama, as the community's second local service, and the associated new FM application, File No. 20110504ACT. No comments or counterproposals were received by any parties. Petitioner did not file comments expressing a continuing interest in the proposed Pike Road allotment. It is the Commission's policy to refrain from making an allotment to a community absent an expression of interest. We will not allot Channel 228A at Pike Road, Alabama.
Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418-2700.
This is a synopsis of the Commission's
Fish and Wildlife Service, Interior.
Notice of initiation of reviews; request for information.
We, the U.S. Fish and Wildlife Service, are initiating 5-year status reviews under the Endangered Species Act of 1973, as amended (Act), of seven animal and plant species. We conduct these reviews to ensure that our classification of each species on the Lists of Endangered and Threatened Wildlife and Plants as threatened or endangered is accurate. A 5-year review assesses the best scientific and commercial data available at the time of the review. We are requesting the public to send us any information that has become available since the most recent status reviews on each of these species. Based on review results, we will determine whether we should change the listing status of any of these species.
To ensure consideration, please send your written information by August 28, 2012. However, we will continue to accept new information about any listed species at any time.
For how and where to send comments or information, see “VIII. Contacts” under
To request information, see “VIII. Contacts” under
Under the Act (16 U.S.C. 1531
In classifying, we use the following definitions, from 50 CFR 424.02:
(A)
(B)
(C)
We must support delisting by the best scientific and commercial data available, and only consider delisting if data substantiate that the species is neither endangered nor threatened for one or more of the following reasons (50 CFR 424.11(d)):
(A) The species is considered extinct;
(B) The species is considered to be recovered; or
(C) The original data available when the species was listed, or the interpretation of data, were in error.
Our regulations at 50 CFR 424.21 require that we publish a notice in the
This notice announces our active 5-year status reviews of the species in the following table.
We consider all new information available at the time we conduct a 5-year review. We consider the best scientific and commercial data that have become available since our current listing determination, or most recent status review that is accessible from our Web site
(A) Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
(B) Habitat conditions, including but not limited to amount, distribution, and suitability;
(C) Conservation measures that have been implemented that benefit the species;
(D) Threat status and trends (see five factors under heading “How Do We Determine Whether a Species Is Endangered or Threatened?”); and
(E) Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.
Section 4(a)(1) of the Act requires that we determine whether a species is endangered or threatened based on one or more of the five following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
For each species under review, if we find new information that indicates a change in classification may be warranted, we may propose a new rule that could do one of the following:
(A) Reclassify the species from threatened to endangered (uplist);
(B) Reclassify the species from endangered to threatened (downlist); or
(C) Remove the species from the List (delist).
If we determine that a change in classification is not warranted, then the species remains on the List under its current status.
To ensure that a 5-year review is complete and based on the best available scientific and commercial information, we request new information from all sources. See “What Information Do We Consider in Our Review?” for specific criteria. If you submit information, support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.
Submit your comments and materials to the appropriate U.S. Fish and Wildlife Service office listed under “VIII. Contacts.”
Submit all electronic information in Text or Rich Text format to
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. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the offices where the comments are submitted.
Send your comments and information on the following species, as well as requests for information, to the corresponding contacts. You may view information we receive in response to this notice, as well as other documentation in our files, at the following locations by appointment, during normal business hours.
We publish this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Institute of Food and Agriculture, USDA.
Notice and request for comments.
In accordance with the Office of Management and Budget (OMB) Paperwork Reduction Act of 1995, this notice announces the National Institute of Food and Agriculture's (NIFA) intention to revise a currently approved information collection entitled, “Cooperative State Research, Education, and Extension Service Grant Application.” NIFA also intends to rename the information collection, “NIFA Grant Application.”
Written comments on this notice must be received by August 28, 2012 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods: Email:
Gidel Mendez; Email:
The nature of the competitive, peer-reviewed process makes it important that information from applicants be available in a standardized format to ensure equitable treatment. Each year, request for applications are issued for various research, education, and extension areas targeted for support. Applicants submit applications for these targeted areas following formats outlined in the application guidelines accompanying each program's solicitation. These applications are evaluated by peer review panels, undergo other merit review processes, and are subsequently awarded. The forms and narrative information are mainly used for application evaluation and administration purposes. While some of the information is used to respond to inquiries from Congress and other government agencies, the forms are not designed to be statistical surveys.
NIFA requires submission of grant applications electronically through Grants.gov. The application processes through Grants.gov leverages several standard forms from the research and related form family. In addition to Grants.gov's standard forms, NIFA must collect some additional information for the proper evaluation and processing of applications. NIFA is also proposing some minor revisions to select forms as noted in each description. These forms include:
The individual form burden is as follows (calculated based on a survey of grant applicants conducted by NIFA):
All responses to this notice will be summarized and included in the request for OMB approval. All comments also will become a matter of public record.
International Trade Administration.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act (PRA) of 1995.
Written comments must be submitted on or before August 28, 2012.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Suzan Winters—Phone: (202) 482-6042,
The International Trade Administration's U.S. Commercial Service (CS) is seeking approval to revise this information collection by combining with other collections, OMB control numbers: 0625-0065, 0625-0130, 0625-0143, 0625-0151, 0625-0215, 0625-0220, 0625-0228, and 0625-0238. These collections include all client intake, events/activities and export success forms. This comprehensive information collection will cover all aspects of an international organization's life-cycle with CS.
CS is mandated by Congress to help U.S. organizations, particularly but not limited to small and medium-sized organizations, export their products and services to global markets. As part of its mission, the CS provides market entry/expansion services and trade events to U.S. organizations. The International Client Life-cycle Multi-Purpose Forms, previously titled Export Assistance Center Internet Web Site Forms, are needed to collect information to enable U.S. organizations to efficiently and effectively enhance their ability to determine which international organizations are most suited for their exporting expansion efforts.
The key to effectively and efficiently assisting U.S. organizations export is identifying and verifying potential international buyers of U.S. goods and services.
1. Create an all inclusive and flexible client life-cycle information collection. The proposed categories of questions are: Contact information, organization information, organization type, agreements and confirmations, objectives, products and services, exporting experience, marketing, events and activities, trade fair/show, certified trade missions, trade missions, advocacy, environment, and education. CS asks only those questions that provide the required information to assist CS in fulfilling a client's objective for a requested service and/or event/activity.
2. Provide CS with the flexibility to create forms from the above approved categories and their questions. Client benefits include customizing questions, forms, and services to address their specific needs and objectives. Without this flexibility, CS is impeded from collecting pertinent client information in an effective and efficient manner.
Therefore, with increased flexibility, and the ability to immediately ascertain key information, U.S. organizations are productively positioned to achieve their exporting and expansion goals.
3. Reduce client burden through forms' flexibility and technology. CS seeks increased forms flexibility to ensure that CS asks and captures only the specific information needed for a particular event, thereby continuing to reduce client burdens as CS utilizes pre-populated information for clients who have previously registered with CS. As CS moves forward, we understand the importance and need for strategic planning and integration of future technology and initiatives that relate to CS programs and metrics with the types of information collected from clients to conduct those programs.
Additionally, the most important positive impact is the ability to quickly change and ask pertinent questions to assist clients with their exporting needs regarding matchmaking services, organization promotions, trade missions, market research and other trade promotional activities.
The information will be collected through Export.gov or sent via email and then completed by client electronically.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) hereby publishes a list of scope rulings completed between October 1, 2011, and December 31, 2011. In conjunction with this list, the Department is also publishing a list of requests for scope rulings and anticircumvention determinations pending as of December 31, 2011. We intend to publish future lists after the close of the next calendar quarter.
Julia Hancock, AD/CVD Operations, China/NME Group, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-1394.
The Department's regulations provide that the Secretary will publish in the
Requestor: Sapa Extrusions; shower door kits containing at the time of importation all of the parts necessary to assemble a complete shower door, including glass panels, without further fabrication are not within the scope of the antidumping and countervailing duty orders; November 7, 2011.
Requestor: Tri Vantage; retractable awning mechanisms that, at the time of importation do not contain the fabric awning, are within the scope of the antidumping and countervailing duty orders; October 14, 2011.
Requestor: Skyline Displays Inc.; banner stands and back wall kits containing at the time of importation all of the parts necessary to assemble a complete banner stand or back wall, without further fabrication, are not within the scope of the antidumping and countervailing duty orders; October 19, 2011.
Requestor: Rubbermaid; cleaning system product lines (frames, handles, and mop handles) composed of aluminum extrusions that do not, at the time of importation, contain all of the parts necessary to comprise a final finished product, are within the scope of the antidumping and countervailing duty orders; October 25, 2011.
Requestor: Rubbermaid; non-extruded aluminum decorative waste containers are not within the scope of the antidumping and countervailing duty orders; October 28, 2011.
Requestor: Peak Products America Inc.; certain modular aluminum railing system components are within the scope of the antidumping and countervailing duty orders; October 31, 2011.
Requestor: Moss Holding Company; its EZ fabric wall display systems are not within the scope of the antidumping and countervailing duty orders; November 9, 2011.
Requestor: American Fence Manufacturing; aluminum fence sections, posts and gates are within the scope of the antidumping and countervailing duty orders; December 6, 2011.
Requestor: IAP Enclosure Systems LLC; window kits containing at the time of importation all of the parts necessary to assemble a complete window, including the glass, without further fabrication are not within the scope of the antidumping and countervailing duty orders; December 6, 2011.
Requestor: Origin Point Brands; certain fence posts, panels, and gates are within the scope of the antidumping and countervailing duty orders; December 13, 2011.
Requestor: Ameristar Fence Products; certain aluminum individual fence parts (
Requestor: US Magnesium LLC; granular magnesium ground in a third-country, such as Mexico for this inquiry, from pure magnesium ingots produced in the People's Republic of China is
Requestor: ESM Group Inc.; its United States-origin pure magnesium ingots exported to the People's Republic of China for atomization and re-exported to the United States are not within the scope of the antidumping duty order; October 28, 2011.
Requestor: Robert H. Ham Associates Ltd.; its retail display hangers are not within the scope of the antidumping duty order; December 1, 2011.
Requestor: University Loft Company; twin-sized Metropolitan (item number 50211SKD) and full-sized Metropolitan (item number 50205SKD) slat beds are not within the scope of the antidumping duty order, while twin-sized (item number 50470-12) and full-sized (item number 50480-12) metal bed headboards and the Upperclassman 2 shelf nightstand (item number 50568-152) are within the scope of the antidumping duty order; December 13, 2011.
Requestor: Delta Enterprise Corporation; its Delta Venetian changing table is outside of the scope of the antidumping duty order; December 27, 2011.
Requestor: Nation Ford Chemical Co. and Sun Chemical Corp.; finished carbazole violet pigment exported from Japan, made from crude carbazole violet pigment from India and/or the People's Republic of China, is within the scope of the antidumping duty and countervailing duty orders; October 14, 2011.
Requestor: M&B Metal Products Inc.; imports of steel wire garment hangers from the Socialist Republic of Vietnam exported by Angang Clothes Rack Manufacture Co., Ltd. and Quyky Yanglei International Co., Ltd. are circumventing the antidumping duty order through means of third country assembly or completion of merchandise imported from the People's Republic of China; October 28, 2011.
None.
Interested parties are invited to comment on the completeness of this list of pending scope and anticircumvention inquiries. Any comments should be submitted to the Deputy Assistant Secretary for AD/CVD Operations, Import Administration, International Trade Administration, 14th Street and Constitution Avenue NW., APO/Dockets Unit, Room 1870, Washington, DC 20230.
This notice is published in accordance with 19 CFR 351.225(o).
National Institute of Standards and Technology, Department of Commerce.
Notice of open meeting.
The Smart Grid Advisory Committee (SGAC or Committee) will hold a meeting via teleconference on Friday, July 27, 2012 from 11 a.m. to 2 p.m. Eastern Time (ET). The primary purposes of this meeting are to review updates on the Smart Grid Interoperability Panel transition plan, review the status of the research subcommittee and the August Smart Grid Workshop in Boulder, Colorado, and plan for a fall meeting. Interested members of the public will be able to participate in the meeting from remote locations by calling into a central phone number.
The SGAC will hold a meeting via teleconference on Friday, July 27, 2012, from 11 a.m. until 2 p.m. Eastern Time (ET).
Questions regarding the meeting should be sent to Office of the National Coordinator for Smart Grid Interoperability, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8200, Gaithersburg, MD 20899-8200. For instructions on how to participate in the meeting, please see the
Dr. George W. Arnold, National Coordinator for Smart Grid Interoperability, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8200, Gaithersburg, MD 20899-8200; telephone 301-975-2232, fax 301-975-4091; or via email at
The Committee was established in accordance with the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
Background information on the Committee is available at
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the SGAC will hold a meeting via teleconference on Friday, July 27, 2012, from 11 a.m. until 2 p.m. Eastern Time (ET). There will be no central meeting location. The public is invited to participate in the meeting by calling in from remote locations. The primary purposes of this meeting are to review updates on the Smart Grid Interoperability Panel transition plan, review the status of the research subcommittee and the August Smart Grid Workshop in Boulder, Colorado, and plan for a fall meeting.
All participants of the meeting are required to pre-register to be admitted. Anyone wishing to participate must register by close of business on Friday, July 20, 2012, in order to be admitted. Please submit your name, email address, and phone number to Cuong Nguyen at
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's affairs are invited to request detailed instructions on how to dial in from a remote location to participate in the meeting by contacting Cuong Nguyen at
National Institute of Standards and Technology (NIST), Commerce.
Notice.
The 97th Annual Meeting of the National Conference on Weights and Measures (NCWM) will be held July 15-19, 2012. This notice contains information about significant items on the NCWM Committee agendas which will be considered at the meetings, but does not include all agenda items. As a result, the items are not consecutively numbered.
The meeting will be held on July 15-19, 2012.
The meeting will be held at the Holiday Inn by the Bay, 88 Spring Street, Portland, Maine 04101.
Ms. Carol Hockert, Chief, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600; by telephone (301) 975-5507; or by email at
Publication of this notice on the NCWM's behalf is undertaken as a public service; NIST does not endorse, approve, or recommend any of the proposals contained in this notice or in the publications of the NCWM.
The NCWM is an organization of weights and measures officials of the states, counties, and cities of the United States, federal agencies, and private sector representatives. These meetings bring together government officials and representatives of business, industry, trade associations, and consumer organizations on subjects related to the field of weights and measures technology, administration and enforcement. NIST participates to promote uniformity among the states in laws, regulations, methods, and testing equipment that comprise the regulatory control of commercial weighing and measuring devices.
The following are brief descriptions of some of the significant agenda items that will be considered at the NCWM Annual Meeting. Comments will be taken on these during several public comment sessions. At this stage, the items are proposals. This meeting also includes work sessions in which the Committees may also accept oral or written comments, and where they will finalize recommendations for NCWM consideration and possible adoption at its voting sessions, which are scheduled for July 18-19, 2012. The Committees may withdraw or carryover items that need additional development.
The Specifications and Tolerances Committee (S&T Committee) will consider proposed amendments to NIST Handbook 44, “Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices.” Those items address weighing and measuring devices used in commercial applications, that is, devices that are used to buy from or sell to the public or used for determining the quantity of product sold among businesses. Issues on the agenda of the NCWM Laws and Regulations Committee (L&R Committee) relate to proposals to amend NIST Handbook 130, “Uniform Laws and Regulations in the area of Legal Metrology and Engine Fuel Quality” and NIST Handbook 133, “Checking the Net Contents of Packaged Goods.”
The following items are proposals to amend NIST Handbook 44:
The Committee will consider a proposal to add language to NIST Handbook 44 to clarify the requirement that hopper scales manufactured as of January 1, 1986, used to weigh grain, must be Accuracy Class III weighing devices. The submitter of this proposal believes that this revision is needed to help ensure that weights and measures officials uniformly apply the handbook's tolerances and other technical and use requirements to grain hopper scales.
The Committee will consider a proposal to add language to NIST Handbook 44 to add a new specification requiring these scales to have an automatic zero ready indicating device. The proposal also includes a requirement that users maintain equipment in accordance with the manufacturer's instructions and that a zero balance condition be established immediately prior to weighing a commodity for a commercial transaction.
Some gasoline and fuel retailers offer a variety of discounts to consumers on fuel prices in connection with marketing services and dispensing product. The Committee will consider the following proposal to modify Section 3.30. Liquid-Measuring Devices. The intent of this proposal is to require that retailers provide consumers with adequate transaction information to assist them in making value comparisons and ensure transparency when fuel purchases are discounted after a delivery.
Item 330-1 includes seven proposed requirements:
This proposal would modify device specifications to recognize current marketing practices of offering pre or post delivery discounts on fuel prices and require the final unit price information to be displayed.
This proposal would allow device manufacturers greater flexibility in the design and operation of customer operated controls on motor-fuel dispensers by recognizing the use of new technology in the selection of a unit price.
This proposal would exempt “total money values” displays on the dispenser and auxiliary equipment (such as the display on a remote control console in an operator's kiosk) from agreement requirements when retailers
This proposal would ensure that, except in fleet sales or under price contracts or where post-delivery discounts are provided, fuel dispensers will provide receipts with sufficient price and other information to allow customers to understand and verify the accuracy of price discounts. The requirement will also recognize the use of either digitally transmitted or printed receipts.
In cases where post delivery discounts on fuel purchases are offered, this proposal would require specific information be printed on receipts made available to consumers so they can verify the accuracy of the transaction and receive a printed record.
This proposal is intended to clarify the requirements for displaying or posting the final unit price of a fuel offered at a discount and periods where the highest unit price shall be displayed.
This proposal would require that customer receipts include adequate information to allow the customer to understand and verify any post delivery discounts the retailer provides in connection with a fuel sale.
The Committee will consider the adoption of a proposal to make tentative Code 5.59. in Handbook 44 enforceable so that it can be used to control the accuracy and the use of electronic carcass evaluation equipment. The equipment in this code is used commercially in livestock procurement operations to determine the value of the animals being purchased. Currently, there is no independent, third party verifying the accuracy of these devices. In 2010, 106.9 million hogs weighing 21.8 billion pounds with a total value of $15.7 billion were commercially purchased. Of these purchases, about 80 percent were made on a carcass yield weight basis using an electronic carcass evaluation device. In addition, electronic evaluation devices are used to measure composition or quality constituents in individual cuts of meat for further sale to consumers. Studies have shown that improper use of electronic carcass evaluation equipment can change the value of livestock, meat, and poultry.
The following items are proposals to amend NIST Handbook 130 or NIST Handbook 133:
The Committee will consider a proposal to revise the density values used to calculate the net weights on packages of polyethylene products to recognize that heavier density plastics are now used in the manufacture of some sheeting and bags. (See also Item 260-4, Handbook 133, Chapter 4.7. Polyethylene Sheeting—Test Procedure—Footnote to Step 3.)
The Committee will consider a proposal to require that kerosene sold from bulk storage at the retail level be solely on the basis of the gallon or liter (note: Kerosene sold in packaged form is already required under packaging and labeling regulations to be sold by fluid volume).
The Committee will consider a proposal to adopt a method of sale that includes product labeling, invoicing, and other requirements for motor oil sold to consumers as part of the oil change service. (See also Item 237-4, Handbook 130 Uniform Engine Fuels and Automotive Lubricants Regulation, Section 3.13.1. Labeling of Vehicle Motor Oil.)
A newly formed task group will develop proposals for methods of sale, labeling requirements and test procedures for packaged printer ink and toner cartridges. The NCWM has assigned the group the task of developing proposed regulations that would require manufacturers of these products to declare net weight statements on both toner and packaged printer ink cartridges. The goal in developing these requirements is to provide consumers with information on the net quantity of contents of these products so that value comparisons can be made, and the stated quantities can be verified by weights and measures officials. The task group will meet on Sunday, July 15, 2012, at the NCWM Annual Meeting.
The Committee will consider two proposals to adopt a national quality standard for commercial hydrogen fuel and to add hydrogen related definitions to the uniform engine fuel regulation. Both proposals would apply to hydrogen fuel sold through dispensing equipment for use in fuel cells and internal combustion engine vehicles. The first proposal would adopt the most recent version of SAE International's Standard J2719 “Hydrogen Fuel Quality for Fuel Cell Vehicles” by reference to establish quality requirements for hydrogen fuel, and the second proposal would define the hydrogen-related terms of “fuel cell,” “hydrogen fuel,” and “internal combustion engine.” (see also Item 232-7, Handbook 130 Uniform Regulation for the Method of Sale Commodities, Section 2.32.1. Definitions for Hydrogen Fuel.)
National Institute of Standards and Technology, Commerce.
Notice.
On June 3, 2011, the National Institute of Standards and Technology (NIST) held a public meeting on its campus to explore the feasibility of establishing a NIST/Industry Consortium on Neutron Metrology for Soft Materials Manufacturing. The notice stated the membership fees would be on the order of Twenty Thousand ($20,000) per year. The initial term of the consortium was intended to be three years. As a result of the October 3, 2011, public meeting, revisions have
This notice is effective on June 29, 2012.
Questions about joining the consortium should be sent to Ronald Jones at the National Institute of Standards and Technology; 100 Bureau Drive; MS 8615; Gaithersburg, MD 20899-8615.
Ronald L. Jones, Eric K. Lin, or Dan Neumann National Institute of Standards and Technology, 100 Bureau Drive, Stop 8514, Gaithersburg, MD 20899-8514, USA; (301) 975-4624; Fax (301) 975-3928; Email:
NIST will form the “nSoft Consortium” to advance and transfer neutron based measurement methods for soft materials manufacturing. The goals of nSoft are to develop neutron-based measurements that address critical needs for manufacturers of soft materials such as polymers, complex fluids, and protein-based materials. Advances in neutron-based measurement science are anticipated through the development of sample environments that closely mimic manufacturing processes, measurement methods to probe and analyze complex mixtures, and data analysis models that support routine measurements with high information content. The consortium will be supervised and administered by NIST. Consortium research and development will be conducted by NIST staff members along with at least one technical representative from each participating member company.
Each member of the consortium will be required to sign a Cooperative Research and Development Agreement (“CRADA”) with NIST. Membership is limited to 40 for-profit institutions and 15 not-for-profit institutions. For-profit membership fees are Twenty Thousand ($20,000) per year, payable by Member to NIST at the time of CRADA execution and annually in August thereafter. For-profit membership fees for members who join in the second half of the year (February through July) will be Ten Thousand ($10,000), payable at the time of CRADA execution. Subsequent membership payments of Twenty Thousand ($20,000) shall be paid each year in August thereafter. Non-profit organizations in lieu of membership fees will contribute personal expertise and materials that are mutually acceptable to NIST and Member. The consortium is designated to last for an initial period of two years.
National Institute of Standards and Technology, Department of Commerce.
Notice of prospective grant of exclusive patent license.
This is a notice in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i) that the National Institute of Standards and Technology (“NIST”), U.S. Department of Commerce, is contemplating the grant of an exclusive license in the United States of America, its territories, possessions and commonwealths, to NIST's interest in the invention embodied in U.S. Patent Application No. 13/346,999 titled “Chirped-Pulse Terahertz Spectroscopy for Broadband Trace Gas Sensing,” NIST Docket No. 11-016 to TerBAT Inc., having a place of business at 2400 Trade Centre Ave, Longmont, CO 80503. The grant of the license would be for the field of use of medical diagnostic devices and environmental/industrial monitoring devices.
Cathy Cohn, National Institute of Standards and Technology, Technology Partnerships Office, 100 Bureau Drive, Stop 2200, Gaithersburg, MD 20899, (301) 975-6691,
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within fifteen days from the date of this published Notice, NIST receives written evidence and argument which establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
U.S. Patent Application No. 13/346,999 is co-owned by the U.S. government, as represented by the Secretary of Commerce and the University of Massachusetts Amherst. The invention comprises Terahertz spectroscopy methods that are fast and have excellent spectral resolution and that do not require background correction of the instrument response without sample are disclosed. In one instance, the methods include phase coherent chirp pulse generation and phase coherent detection.
National Institute of Standards and Technology, Commerce.
Notice of prospective grant of exclusive patent license.
This is a notice in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i) that the National Institute of Standards and Technology (“NIST”), U.S. Department of Commerce, is contemplating the grant of an exclusive license in the United States of America, its territories, possessions and commonwealths, to NIST's interest in the invention embodied in U.S. Patent No. 6,393,566 titled “Timestamp Service for the National Information Network,” NIST Docket No. 95-022 to RSIP LLC, having a place of business at 8 East Figueroa, Suite 220, Santa Barbara, California 93101. The grant of the license would be for the field of use of Digital Timestamping.
Cathy Cohn, National Institute of Standards and Technology, Technology Partnerships Office, 100 Bureau Drive, Stop 2200, Gaithersburg, MD 20899, Phone 301-975-6691,
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within fifteen days from the date of this published Notice, NIST receives written evidence and argument which establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
U.S. Patent No. 6,393,566 is owned by the U.S. government, as represented by the Secretary of Commerce. The invention is a system and method for
National Institute of Standards and Technology, Department of Commerce.
Notice of prospective grant of exclusive patent license.
This is a notice in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i) that the National Institute of Standards and Technology (“NIST”), U.S. Department of Commerce, is contemplating the grant of an exclusive license in the United States of America, its territories, possessions and commonwealths, to NIST's interest in the invention embodied in U.S. Patent No. 7,709,807 (Application No. 12/116,522), titled “Magneto-Optical Trap Ion Source,” NIST Docket No. 07-015 and U.S. Patent Application No. 13/369,008 titled “Charged Particle Source from a Photoionized Cold Atom Beam,” NIST Docket No. 11-018 to LoTIS Technologies LLC, having a place of business at 18026 Royal Bonnet Circle, Montgomery Village, Maryland 20886. The grant of the license would be for the field: Devices that produce or include a focused beam of electrons and/or ions.
Cathy Cohn, National Institute of Standards and Technology, Technology Partnerships Office, 100 Bureau Drive, Stop 2200, Gaithersburg, MD 20899, (301) 975-6691,
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within fifteen days from the date of this published Notice, NIST receives written evidence and argument which establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
U.S. Patent No. 7,709,807 and U.S. Patent Application No. 13/369,008 are owned by the U.S. government, as represented by the Secretary of Commerce. U.S. Patent No. 7,709,807 describes a system and method for producing a source of ions, and particularly, a focused ion beam. The system and method use a magneto-optical trap (MOT) to produce a population of neutral atoms. A laser is then utilized to ionize atoms and produce a population of ions. An extraction element is then used to transfer the ions so that they can be used in a wide array of applications. U.S. Patent Application No. 13/369,008 describes a system for producing a charged particle beam from a photoionized cold atom beam. A vapor of neutral atoms is generated. From these atoms, an atom beam having axial and transverse velocity distributions controlled by the application of laser light is produced. The produced atom beam is spatially compressed along each transverse axis, thus reducing the cross-sectional area of the produced beam and reducing a velocity spread of the produced beam along directions transverse to the beam's direction of propagation. Laser light is directed onto at least a portion of the neutral atoms in the atom beam, thereby producing ions and electrons. An electric field is generated at the location of the produced ions and electrons, thereby producing a beam of ions traveling in a first direction and electrons traveling in substantially the opposite direction. A vacuum chamber contains the atom beam, the ion beam and the electron beam.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
On June 28, 2011, NMFS published a proposed rule that considered requiring, among other things, Federal Atlantic swordfish, shark, and tunas dealers (except for dealers reporting Atlantic bluefin tuna) to report commercially-harvested Atlantic sharks, swordfish, and bigeye, albacore, yellowfin, and skipjack (BAYS) tunas through one centralized electronic reporting system. This electronic reporting system will allow dealers to submit Atlantic sharks, swordfish, and BAYS tuna data on a more real-time basis and more efficiently, which will reduce duplicative data submissions from different regions. We proposed to delay the effective date of the electronic reporting requirements until 2013 in order to give sufficient time for dealers to adjust to implementation of the new system and the additional requirements. On December 14, 2011, we conducted an initial training workshop in the Caribbean area in order to introduce the new reporting system to HMS dealers. In this notice, we announce the date and location for additional training workshops in the Caribbean, Gulf of Mexico and Atlantic regions in order to continue introducing HMS dealers to the new electronic system.
Training workshops for the new electronic dealer system will be held from July through September 2012. See
Workshops will be held in Mayagüez, Puerto Rico; St. Croix, United States Virgin Islands (U.S.V.I.); Belle Chase, Louisiana; Dulac, Louisiana; Panama City, Florida; Port Orange, Florida; Seminole, Florida; Fort Lauderdale, Florida; and Marathon, Florida Keys. See
Delisse Ortiz or Karyl Brewster-Geisz at (301) 427-8503 (phone), or Jackie Wilson at (240) 338-3936, or (301) 713-
Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801
The current regulations and infrastructure of the Atlantic HMS quota-monitoring systems result in a delay of several weeks or more before NMFS receives dealer data. This can affect management and monitoring of small Atlantic HMS quotas and short fishing seasons. As such, on June 28, 2011 (76 FR 37750), we published a proposed rule in the
In order to give sufficient time for dealers to adjust to implementation of the new system and the additional requirements, we proposed delaying implementation of the new HMS electronic reporting system for all federally-permitted HMS dealers until 2013. Additionally, we decided to conduct outreach to HMS dealers to train them how to use the new system and help ease the transition from the current paper format to the new HMS electronic reporting system. We conducted an initial training workshop for HMS dealers in St. Thomas, U.S.V.I. on December 14, 2011, and in this notice we are announcing additional training workshops in the Gulf of Mexico, Atlantic, and Caribbean regions. However, we are not holding a training workshop in St. Thomas, U.S.V.I. at this time; we are working on scheduling an additional training session in St. Thomas, U.S.V.I. in the future.
These workshops will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Delisse Ortiz at (301) 425-8503 or Jackie Wilson at (240) 338-3936 at least 7 days prior to the workshop date. The public is reminded that NMFS expects participants at the workshop to conduct themselves appropriately. At the beginning of each workshop, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the hearing room; each attendee will have an opportunity to ask questions; and attendees should not interrupt one another). Attendees are expected to respect the ground rules; if they do not, they will be asked to leave the workshop.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of committee meeting.
The North Pacific Fishery Management Council's (Council) Steller Sea Lion Mitigation Committee (SSLMC) will meet July 16-17, 2012, in
The meeting will be held at the Alaska Fishery Science Center, 7600 Sand Point Way NE., Seattle, WA.
Steve MacLean, North Pacific Fishery Management Council; telephone: (907) 271-2809.
This public meeting will occur during the scoping period for the Steller Sea Lion Protection Measures EIS (77 FR 22750, April 17, 2012). Information on EIS development, potential alternatives, and issues for analysis may be discussed. The public is encouraged to attend in this meeting, however, comments specific to the EIS should be submitted in writing to NMFS before the close of the scoping period on October 15, 2012. More information on the EIS scoping process and instructions for submitting written public comments are available on the NMFS Alaska Region Web site at
Additional information is posted on the Council Web site:
The meeting will be webcast at
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen, (907) 271-2809, at least 5 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Todd Robeck, D.V.M, Ph.D., Sea World Parks and Entertainment Corp, 500 Sea World Drive, San Diego, CA 92109, has applied in due form for a permit to receive, import, and export specimens of marine mammals for scientific research.
Written, telefaxed, or email comments must be received on or before July 30, 2012.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Jennifer Skidmore or Amy Sloan, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant is requesting authorization to receive, import, and export an unlimited number of cetacean and pinniped specimens (from several species of dolphin, pilot whales, beluga whales, killer whales, South American sea lions, Steller sea lions, and Hawaiian monk seals) including but not limited to reproductive cells and organs, urine, feces, teeth, skin, saliva, ocular and nasal secretions, and whole blood taken from dead or captive individuals to study reproductive physiology, including endocrinology, gamete biology, and cryophysiology.
Specimens from dead animals, located solely within the jurisdiction of the U.S.A. or Canada, would be collected under the following circumstances: Legal subsistence harvesting; killed incidentally to fishing or other operations; found dead at sea or beached; or that died of natural causes. No specimens would be imported from animals killed during high seas driftnet fisheries or during a direct fishery. From dead animals, samples from not more than 40 animals per species are anticipated to be collected per year. For captive animals, specimens would be collected from animals that are being housed in countries or situations where such activity is legal and from animals that have been behaviorally conditioned for specimen donation or during normal USDA approved animal husbandry procedures. For live animals, unlimited specimens would be collected for import or export from not more than 20 individual animals per species per year. Specimens may be taken at anytime of the year and in all areas worldwide where pinnipeds and cetaceans are found. The requested duration of the permit is five years.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops; correction.
NMFS announces that the date of the Atlantic Shark Identification workshop originally scheduled for August 9, 2012, in Rosenberg, TX, has been changed to August 16, 2012. This workshop notice originally published on June 4, 2012. The August 16, 2012, workshop will be held from 12 p.m. to 4 p.m. at LaQuinta Inn & Suites, 28332 SW Freeway 59, Rosenberg, TX 77471. The July and September workshop dates remain unchanged. Atlantic Shark Identification workshops are mandatory for Atlantic Shark Dealer permit holders or their proxies. Additional free workshops will be held in 2012, and announced in the
The Atlantic Shark Identification Workshop scheduled for August 9, 2012, in Rosenberg, TX, has been rescheduled for August 16, 2012. See
The location of the rescheduled workshop has not changed. See
Richard A. Pearson of the Highly Migratory Species Management Division at (727) 824-5399.
In the
2. August 16, 2012, from 12 p.m.-4 p.m., LaQuinta Inn & Suites, 28332 SW Freeway 59, Rosenberg, TX 77471.
16 U.S.C., 1801
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities and to delete products previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
Mess Attendant Services tasks are defined in the Performance Work Statement and include replenishing tableware and table items, cleaning dining room tables and chairs or benches as needed, including spills, after each meal service, providing cashier services; cleaning and sanitizing food service equipment and utensils; washing, rinsing, and drying tableware, cookware, and kitchen and serving line utensils; cleaning tops and sides of dining tables, monitoring the cleanliness of the Salad Bar area during meal periods, and serving food on the line throughout the duration of the meal period.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products proposed for deletion from the Procurement List.
The following products are proposed for deletion from the Procurement List:
Commodity Futures Trading Commission.
Notice of Federal Advisory Committee Reestablishment.
The Commodity Futures Trading Commission has determined to reestablish the charter of its Agricultural Advisory Committee.
Gail B. Scott, Committee Management Officer, at 202-418-5139. Written comments should be submitted to David A. Stawick, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. Electronic comments may be submitted to
Comments may also be submitted by any of the following methods:
The agency's Web site, at
Please submit your comments using only one method and identity that it is for the reestablishment of the Agricultural Advisory Committee.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commodity Futures Trading Commission (“Commission”) has determined to reestablish its Agricultural Advisory Committee. The Commission has determined that reestablishing the advisory committee is in the public interest in connection with the duties imposed on the Commission by the Commodity Exchange Act, 7 U.S.C. 1-26, as amended. The Agricultural Advisory Committee will operate for two years from the date of renewal unless, before the expiration of that time period, its charter is renewed in accordance with section 14(a)(2) of the Federal Advisory Committee Act, or the Chairman of the Commission, with the concurrence of the other Commissioners, shall direct that the advisory committee terminate on an earlier date.
The purpose of the Agricultural Advisory Committee is to conduct public meetings and submit reports and recommendations to assist the
Meetings of the Agricultural Advisory Committee are open to the public.
The Commission may reestablish the Agricultural Advisory Committee by filing the reestablishment charter with the Commission; the Senate Committee on Agriculture, Nutrition and Forestry; the House Committee on Agriculture; the Library of Congress; and the General Services Administration's Committee Management Secretariat at least fifteen (15) calendar days after this notice of reestablishment appears in the
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12-28 with attached transmittal, policy justification, and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
The Government of the Kingdom of Morocco has requested a possible enhancement and refurbishment of 200 M1A1 Abrams tanks, provided as part of a grant Excess Defense Article (EDA) transfer notified to Congress on 27 April 2011, to the M1A1 Special Armor (SA) configuration. The possible sale will also provide 150 AN/VRC-87E and 50 AN/VRC-89E Exportable Single Channel Ground and Airborne Radio Systems (SINCGARS), 200 M2 Chrysler Mount Machine Guns, and 400 7.62MM M240 Machine Guns. The possible sale also includes 12,049,842 Ammunition Rounds (including 1400 C785 SABOT, 1800 CA31 HEAT, and 5400 AA38 SLAP-T), 200 M250 Smoke Grenade Launchers, support equipment, spare and repair parts, personnel training and training equipment, publications and technical data, communication support, U.S. Government and contractor technical assistance, and other related logistics support. The estimated cost is $1.015 billion.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a major Non-NATO ally that continues to be an important force for political stability and economic progress in Africa.
This package of M1A1 tank enhancements will contribute to the modernization of Morocco's tank fleet, enhancing its ability to meet current and future threats. These tanks will contribute to Morocco's goal of updating its military capability while further enhancing interoperability with the U.S. and other allies.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be General Dynamics Land Systems in Sterling Heights, Michigan. Refurbishment work will be performed at Anniston Army Depot in Anniston, Alabama and the Joint Systems Manufacturing Center in Lima, Ohio. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require annual trips to Morocco involving up to 64 U.S. Government and 13 contractor representatives for a period of up to five years to manage the fielding and training for the program.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The M1A1 Abrams Tanks components considered to contain sensitive technology in the proposed program are as follows:
a. The M1A1 Thermal Imaging System (TIS) 2nd Gen Forward Looking Infrared (FLIR) constitutes a target acquisition system which, when operated with other tank systems, gives the tank crew a substantial advantage over the potential threat. The TIS provides the M1A1 crew with the ability to effectively aim and fire the tank main armament system under a broad range of adverse battlefield conditions. The hardware itself is Unclassified. The engineering design and manufacturing data associated with the detector and infrared (IR) optics and coatings are considered sensitive. The technical data package is Unclassified with the exception of the specifications for target acquisition range (Confidential), nuclear hardening (Confidential, restricted data) and laser hardening (Secret).
b. The M1A1 Tank Special Armor and other special armors used in the hull and turret are classified at the Secret level. Major components of Special Armor are fabricated in sealed modules and in serialized removable subassemblies. Special Armor components and associated vulnerability data for both chemical and kinetic energy rounds are classified Secret.
c. The use of the Advanced Gas Turbine-1500 (AGT-1500) Gas Turbine Propulsion System in the MlA1 is a unique application of armored vehicle power pack technology. The hardware is composed of the AGT-1500 engine and transmission, and is Unclassified. Manufacturing processes associated with the production of turbine blades, recuperator, bearings and shafts, and hydrostatic pump and motor, are proprietary and therefore commercially competition sensitive.
d. A major survivability feature of the Abrams Tank is the compartmentalization of fuel and ammunition. Compartmentalization is the positive separation of the crew and critical components from combustible materials. In the event that the fuel or ammunition is ignited or deteriorated by an incoming threat round, the crew is fully protected by the compartmentalization. Sensitive information includes the performance of the ammunition compartments as well as the compartment design parameters.
2. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures or equivalent systems which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of availability.
Pursuant to the National Environmental Policy Act (NEPA), the U.S. Army Corps of Engineers (USACE), Sacramento District has prepared a Draft Environmental Impact Statement (DEIS) to analyze the potential direct, indirect and cumulative effects of implementing the No Action alternative and three large-scale, mixed-use development alternatives in the approximately 5,749-acre Mather Specific Plan area, Sacramento County, California (note that approximately 2,554 acres of the Plan area contains existing development, primarily Mather Airport, a Commerce Center, a residential subdivision, lake and golf course).
The purpose of the DEIS is to provide decision-makers and the public with information pertaining to the Applicant's Preferred Alternative and alternatives, and to disclose environmental impacts and identify mitigation measures to reduce impacts. The DEIS documents the existing
All written comments must be postmarked on or before August 13, 2012.
Comments may be submitted in writing to: Kathleen Dadey, U.S. Army Corps of Engineers, Sacramento District, Regulatory Division; 1325 J Street, Room 1350, Sacramento, CA 95814-2922, or via email to Kathleen.A.Dadey@usace.army.mil.
Kathleen Dadey at 916-557-5250, or via email at
Sacremento County Office of Economic Development and Marketing (applicant) is seeking authorization from USACE for the placement of dredged or fill material into waters of the United States pursuant to Section 404 of the Clean Water Act to develop portions of the Mather Specific Plan area. The overall project purpose is a large scale, mixed use development to promote economic and wetland conservation opportunities within the Mather Specific Plan area. All of the build alternatives include the following land uses: airport commercial, commercial development, parks and recreation, aggregate extraction, university village/residential, regional sports park and infrastructure, including roadways.
Alternative A, the Applicant's Preferred Alternative, includes approximately 1,910 acres of development a 1,272-acre Preserve and a 13-acre riparian buffer area. The applicant proposes to fill a total of 40.25 acres of waters of the U.S., including seasonal wetlands, vernal pools and swales, channels and drainage ditches. The preserved areas would provide protection for wetlands (including vernal pools) and endangered species, including vernal pool fairy shrimp, vernal pool tadpole shrimp, and legenere. The Preserve would also protect federally listed critical habitat.
Alternative B is based on a land use plan for the Mather Specific Plan area that was conceptually endorsed by the Sacramento County Board of Supervisors in February 2006. Alternative B includes a 1,064-acre Preserve and 27 acre riparian buffer area which would provide protection for wetlands and endangered species. This alternative anticipates development of approximately 2,011 acres. Alternative B also includes four “avoidance areas” totaling 93 acres within the parks and recreation and university village/residential areas. Impacts to waters of the U.S. associated with Alternative B would 39.64 acres.
Alternative C proposes land uses identical to Alternative A with the addition of three smaller Preserves within the commercial development and university village/residential areas, with a total of 33.65 acres of fill into waters of the U.S. Alternative C would develop approximately 1,836 acreas and includes 1,346 acres of Preserve and 13 acres of riparian buffer area. Preserve areas would provide protection for wetlands and endangered species.
Alternative D, No Action/No USACE permit, avoids the placement of dredged or fill material into waters of the United States, including wetlands. A reduced amount of future development could occur without Department of the Army authorization, including infill development at Mather Airport and aggregate extraction in the southwestern corner of the project site. Because this alternative does not anticipate substantial economic development and related revenue to fund active management of a Preserve, however, the level of protection and management of wetland resources, listed species and their habitat is unknown.
Comments on the DEIS must be submitted to USACE by August 13, 2012. The public and affected Federal, State and local agencies, Native American Tribes, and other organizations and parties are invited to comment. An electronic copoy of the DEIS may be found on the USACE Web site at:
The USACE will conduct a public meeting for the DEIS on July 25, 2012 from 4:00 p.m. to 7:00 p.m. in Main Conference Room A at 10590 Armstrong Avenue, Mather, California 95655. Interested parties can provide oral and written comments at this meeting.
In addition to this
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice.
The three locks in the Twin Cities (Upper St. Anthony Falls, Lower St. Anthony Falls, and Lock and Dam 1) located in Minneapolis, MN, on the Mississippi River, currently operate at Service Level 1 (24 hours per day/7 days per week) during the navigation season. It is proposed that these three locks and dams transition to Service Level 2 for the 2013 navigation season and beyond. The navigation season on the Upper Mississippi normally begins in March, depending on river conditions. Under Service Level 2, the locks will operate from 7:00 a.m. to 2:00 a.m. and will be closed to lockages between 2:00 a.m. and 7:00 a.m.
Constrained funding has led to reduced Operations and Maintenance funding within the Corps' Inland Marine Transportation System (IMTS). The intended effect of the proposed change reduces operational costs and aligns lock availability with existing levels of lock usage. The Twin Cities locks have less than 1000 commercial lockages per year. Based on guidance adopted by the IMTS Board of Directors, locks operating at Service Level 1 should pass more than 1,000 commercial lockages per year. Pool levels will not be affected by change of operating hours.
Submit written comments by August 30, 2012, to Mr. Kevin Baumgard, Deputy Chief, Operations Division, U.S. Army Corps of Engineers, 180 Fifth Street East, Suite 700, St. Paul, MN 55101-1678, or by email at
Mr. Michael Kidby at Corps of Engineers
Public meeting: August 7, 2012, from 7:00 p.m. to 8:00 p.m. at the Minneapolis Park and Recreation Board Headquarters, 2117 West River Road Minneapolis, MN.
The legal authority for the regulation governing the use, administration, and navigation of the Twin Cities locks is Section 4 of the River and Harbor Act of August 18, 1894 (28 Stat. 362), as amended, which is codified at 33 U.S.C. Section 1. This statute requires the Secretary of the Army to “prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States” as the Secretary determines may be required by public necessity. Reference 33 CFR 207.300, Mississippi River below mouth of Ohio River, including South and Southwest Passes; use, administration, and navigation.
Department of the Navy, DoD.
Notice.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, as implemented by the Council on Environmental Quality Regulations, the Department of the Navy (DoN) announces its intent to prepare an Environmental Impact Statement (EIS) to evaluate the potential environmental effects of developing an academic campus on Naval Base Coronado (NBC) to support the current and future operational readiness of personnel with the Naval Special Warfare Command (NSWC). The proposed campus would include a mix of instructional and administrative facilities that would provide for indoor classroom and tactical training instruction, and equipment use, maintenance, and storage. Specific proposed actions within the Coastal Campus proposal are: (1) Evaluation of current land use and available facilities; (2) augmentation by design and construction of new facilities to support logistics, equipment use and maintenance training, classroom and tactical skills instruction, storage, and administration; and, (3) design and build of related site improvements that may include upgraded utilities, fencing, roads, and parking. An EIS is considered the appropriate document for comprehensively analyzing the potential environmental impacts of implementing this proposed action.
1. Tuesday, July 17, 2012, 6:00 p.m. to 8:00 p.m., Marina Vista Community Center, 1075 Eighth Street, Imperial Beach, California, 91932.
2. Wednesday, July 18, 2012, 6:00 p.m. to 8:00 p.m., Winn Room, Coronado Public Library, 640 Orange Avenue, Coronado, California, 92118.
Additional information concerning meeting times and locations is available on the EIS Web site at
Public scoping meetings will include open house sessions, with information stations staffed by the DoN representatives. Comments, both written and oral, will be collected at each of the two public scoping meetings, and written comments may also be made electronically on the project Web site. Spanish translation will be available at the public meetings and the project Web site accommodates Spanish language users.
Naval Base Coronado Coastal Campus EIS Project Manager, Attn: Ms. Teresa Bresler, 2730 McKean Street, Bldg 291, San Diego, California 92136.
NSWC is the maritime component of United States Special Operations Command (USSOCOM). Based at NAB Coronado, California, NSWC's mission is to organize, train, man, equip, educate, sustain, maintain combat readiness, and deploy Naval Special Warfare (NSW) forces to carry out special operations missions worldwide. NSW forces operate independently or in conjunction with other special operations forces (SOF), joint forces, allied units, and coalition forces.
NSWC currently conducts administrative and extensive logistics support, equipment use and maintenance training and classroom and tactical skills instruction on the Silver Strand Training Complex-North (SSTC-N) and Silver Strand Training Complex South (SSTC-S), Naval Amphibious Base (NAB) Coronado, Naval Air Station North Island (NASNI), and Naval Outlying Landing Field Imperial Beach (NOLFIB), and Camp Michael Monsoor. Although all of the facilities currently used by NSWC are located on components of NBC, they are over-utilized as well as widely dispersed and not conveniently co-located.
To support Congressionally-mandated growth of NSWC and to meet its current and anticipated mission requirements, the DoN is proposing a Coastal Campus at NBC. The proposed Coastal Campus would support future operational readiness by augmenting available NSWC facilities and reducing fragmentation and space deficiencies, while providing an integrated campus that accommodates primacy and privacy, characteristics of learning required for the development of these skill sets.
The proposed Coastal Campus would augment the current facilities used by NSWC. Specific proposed actions within the Coastal Campus proposal are as follows.
(1) Evaluation of current land use and available facilities.
(2) Augmentation by design and construction of new facilities to support logistics, equipment use and maintenance training, classroom and tactical skills instruction, storage, and administration.
(3) Design and build of related site improvements that may including utilities, fencing, roads, and parking. Due to the functional linkages and the geographic proximity of the components, the proposed Coastal Campus could be sited at SSTC-S, SSTC-N including NAB Coronado, NASNI, or NOLFIB, or a combination of these locations, all within the footprint of NBC.
Accordingly, the purpose of the Proposed Action is to provide adequate facilities to support growth of NSWC and to maintain the required levels of operational readiness of special warfare forces, as mandated by Title 10 of U.S.C. Section 167 and Section 5062. The need for the proposed action is the lack of sufficient facilities and space to support NSWC's administrative, logistics, and classroom and tactical instruction functions. The Proposed Action would meet this need by optimizing both facilities and use of space, including synchronistic site improvements, within the existing NBC footprint. This would allow NSWC to support fluctuating organizational structure and mandated mission requirements.
The specific arrangement of built assets, number of buildings and required space would be developed and refined during the NEPA process based on scoping, impacts analysis and results of resource surveys. The DoN proposes 25 projects on NBC over a period of approximately ten years. Each of these projects would be refined as they are studied and evaluated during the Coastal Campus EIS process. The Coastal Campus EIS, when completed, would provide an analytic baseline from which each successive NSWC project may be optimally designed in terms of land use, facilities and infrastructure, and impacts to resources found within the study area.
(1) Alternative 1 (SSTC-S Alternative) consists of:
○ Consolidation of the necessary NSWC facilities to one location on the northern half of SSTC-S.
○ Design and construction of logistical support buildings, equipment use and maintenance training facilities, classroom and tactical skills instruction buildings, storage and administrative facilities, utilities, fencing, roads, and parking.
○ Construction of a new entry controlled point providing immediate access to SSTC-S from State Route 75, utilizing sustainable design for all facilities as is practicable.
(2) Alternative 2 (SSTC-S Design II expanded footprint Alternative) would include all of the components of Alternative 1, but the design footprint would increase by expanding the footprint down to the southern fence line of the SSTC-S boundary.
(3) Alternative 3 (Multi-Installation Alternative) would site necessary NSWC facilities at more than one location to include NAB Coronado, NASNI, NOLFIB, and SSTC-S incorporating sustainable design into all facilities as is practicable.
(4) Alternative 4 (No Action Alternative) would maintain existing land uses and training facilities as currently utilized at NBC. No new improvements would occur. Current programmed levels of use (type, tempo, location), including requirements for planned force growth, would continue. As a result, NSWC would continue to have limited space for current and future training support, as well as an inability to cope with Congressionally-mandated expanding training needs. Without consolidation of classroom and support facilities, NSWC personnel would continue to transit between SSTC-N/NAB Coronado, SSTC-S, and NOLFIB. This would continue inefficiency and fragmentation of training and increased expenses, and the environmental consequences would persist (e.g., air emissions and energy consumption of vehicle miles traveled). By limiting facilities and land use support to accommodate NSWC growth and expansion, Alternative 4—No Action Alternative would not achieve the mission of NSWC; however, it will be studied as a baseline of current land and facilities use.
Written comments on the scope of the EIS should be postmarked no later than July 30, 2012. Comments may be mailed to the EIS Project Manager (Attn: Ms. Teresa Bresler), 2730 McKean Street, Bldg. 291, San Diego, California, 92136. Comments may also be submitted via the EIS Web site at
Department of the Navy, DoD.
Notice to add a system of records.
The Department of the Navy proposes to add a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The blanket (k)(1) exemption applies to this systems of records to accurately describe the basis for exempting disclosure of classified information that is or may be contained in the records.
This proposed action will be effective on July 30, 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:
*
*
Ms. Robin Patterson, Department of the Navy, DNS-36, 2000 Navy Pentagon, Washington, DC 20350-2000 or call at (202) 685-6545.
The Department of the Navy notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Navy Cash® Financial System.
Navy Cash is installed on all Navy ships with a Disbursing Officer. Official mailing addresses are published in the Standard Navy Distribution List, which is available as an appendix to the Navy's compilation of system of records notices and may be obtained from the System Manager.
The Navy Cash back-end ashore is operated by a U.S. Department of the Treasury Financial Agent, JPMorgan Chase, Treasury Services, 10430 Highland Manor Drive, Tampa, FL 33610-9128.
Navy and Marine Corps Active and Reserve military members, civilian employees, and contractors and civilians assigned to duty or visiting on board Navy ships.
Individual's name, military branch or company name, Social Security Number (SSN), rate, rank, title, pay grade, date of birth, mother's maiden name or keyword, military duty address, residence/permanent address, work telephone number, cell telephone phone, email address, bank or credit union name, city, state, and zip code, ABA routing number, account number, name on account, account type, Navy Cash/Marine Cash card number, electronic signature (future capability), Automated Clearing House (ACH) Electronic Fund Transfer (EFT) requests, returned EFT requests, collections of debts, collections of payments, account balances, transaction history, and purchase history.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 5041, Headquarters Marine Corps; 31 U.S.C. 321, General Authority of the Secretary of the Treasury; Pub. L. 104-134, Debt Collection Improvement Act of 1996, as amended; Department of Defense Financial Management Regulation (DoDFMR) 7000.14-R, as amended; 5 U.S.C. 5514, Installment deduction for indebtedness to the United States; 31 U.S.C. 1322, Payments of unclaimed trust fund amounts and refund of amounts erroneously deposited; 31 U.S.C. 3720, Collection of payments; 31 U.S.C. 3720A, Reduction of tax refund by amount of debt; 31 U.S.C. 7701, Taxpayer indentifying number; 37 U.S.C. 1007, Deductions from pay; 31 CFR 210, Federal Government Participation in the Automated Clearing House; 31 CFR 285, Debt Collection Authorities under the Debt Collection Improvement Act of 1996; and E.O. 9397 (SSN), as amended.
To provide an electronic cash management application that replaces bills and coins for purchases on the ship; provides Sailors and Marines on board ship with electronic access to their Navy Cash accounts and a portion of pay each pay day (Split Pay Option), 24/7 offline access to bank and credit union accounts ashore, and the ability to move money electronically to and from Navy Cash accounts and bank and credit union accounts; and provides access off the ship to funds in Navy Cash accounts at merchants and ATMs worldwide.
In addition to those disclosures generally permitted under 5 U.S.C. Section 552(a)(b) of the Privacy Act of 1974, as amended, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the U.S. Department of the Treasury, Fiscal and Financial Agents, and their contractors involved in providing Navy Cash services.
The DoD `Blanket Routine Uses' published at the beginning of the Department of the Navy's compilation of system of records notices may apply to this system.
Paper file folders and electronic storage media.
Name, Social Security Number (SSN), and Navy Cash/Marine Cash card number.
Paper and electronic records on board ship are maintained in controlled areas accessible only to authorized personnel, e.g., the Disbursing Office or Sales Office. Physical entry is restricted by the use of locks and administrative procedures. Access to personal information is restricted to those who require the records in the performance of their official duties. Access to personal information stored electronically is further restricted by the use of user names and passwords (current) and Common Access Card (CAC) (future). All individuals granted access will have received Information Assurance and Privacy Act training.
Records are maintained for 6 years and 3 months after the period covered by the individual accounts and then destroyed by burning or shredding or by degaussing, erasing, deleting, or overwriting.
Commander, Naval Supply Systems Command, Navy Cash Program Office (N3/4), 5450 Carlisle Pike, Building 309, Mechanicsburg, PA 17055-0791.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to Commander, Naval Supply Systems Command, Navy Cash Program Office (N3/4), 5450 Carlisle Pike, Building 309, Mechanicsburg, PA 17055-0791.
The request should be signed and include full name, last four digits of Social Security Number (SSN), rate/rank, and a complete mailing address. The system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
Individuals seeking access to records about themselves contained in this system of records should address written inquiries to Commander, Naval Supply Systems Command, Navy Cash Program Office (N3/4), 5450 Carlisle Pike, Building 309, Mechanicsburg, PA 17055-0791.
The request should be signed and include full name, last four digits of Social Security Number (SSN), rate/rank, and a complete mailing address. The system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individual.
An exemption rule for this system has been promulgated in accordance with the requirements of 5 U.S.C. 553(b)(1), (2) and (3)(c) and (e) and it published at 32 CFR part 701.
The Federal Perkins Loan Program allows for assignment of certain defaulted loans from schools to continued collection efforts when the school has exhausted all of its efforts in recovering an outstanding loan. The Perkins Assignment Form serves as the transmittal document in the assignment of such loans to the Federal Government.
Interested persons are invited to submit comments on or before August 28, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Federal Student Aid, Department of Education.
Notice.
Catalog Federal Domestic Assistance (CFDA) Numbers: 84.007
Federal Supplemental Educational Opportunity Grant Program; 84.033 Federal Work-Study Programs; 84.038 Federal Perkins Loan Program; 84.063 Federal Pell Grant Program; 84.268 William D. Ford Federal Direct Loan Program; 84.379 Teacher Education Assistance for College and Higher Education Grant Program; 84.408 Iraq and Afghanistan Service Grant Program.
The Secretary announces deadline dates for the receipt of documents and other information from institutions and applicants for the Federal student aid programs authorized under Title IV of the Higher Education Act of 1965, as amended, for the 2011-2012 award year. The Federal student aid programs include the Federal Supplemental Educational Opportunity Grant (FSEOG), Federal Work-Study (FWS), Federal Perkins Loan, Federal Pell Grant, William D. Ford Federal Direct Loan (Direct Loan), Teacher Education Assistance for College and Higher Education (TEACH) Grant, and the Iraq and Afghanistan Service Grant programs.
These programs, administered by the U.S. Department of Education (Department), provide financial assistance to students attending eligible postsecondary educational institutions to help them pay their educational costs.
Table A provides information and deadline dates for application processing, including receipt of the Free Application for Federal Student Aid (FAFSA) and corrections to and signatures for the FAFSA, receipt of ISIRs and SARs, and receipt of verification documents.
The deadline date for the receipt of a FAFSA by the Department's Central Processing System is June 30, 2012, regardless of the method that the applicant uses to submit the FAFSA. The deadline date for the receipt of a signature page for the FAFSA (if required), corrections, changes of addresses or schools, or requests for a duplicate SAR is September 21, 2012. Verification documents must be received by the institution no later than the earlier of 120 days after the student's last date of enrollment or September 28, 2012. As a reminder, verification is not required for unsubsidized Direct Stafford Loans and PLUS Loans, TEACH Grants, and Iraq and Afghanistan Service Grants.
For all Federal student aid programs except Direct PLUS Loans made to parent borrowers, an ISIR or SAR with an official expected family contribution must be received by the institution no later than the earlier of the student's last date of enrollment for the 2011-2012 award year or September 28, 2012. For Direct PLUS Loans made to parent borrowers, FAFSA information processed by the Secretary must be received by the institution no later than the earlier of the student's last date of enrollment for the 2011-2012 award year or September 28, 2012. For purposes of only the Federal Pell Grant Program, a valid ISIR or a valid SAR for a student not meeting the conditions for a late disbursement must be received no later than the earlier of the student's last date of enrollment or September 28, 2012. A valid ISIR or valid SAR for a student meeting the conditions for a late disbursement under the Federal Pell Grant, FSEOG, FWS, Federal Perkins Loan or Direct Subsidized Loan programs must be received according to the deadline dates provided in Table A.
In accordance with the regulations in 34 CFR 668.164(g)(4)(i), an institution may not make a late disbursement later than 180 days after the date of the institution's determination that the student withdrew, as provided in 34 CFR 668.22, or for a student who did not withdraw, 180 days after the date the student otherwise became ineligible. Table A provides that an institution must receive a valid ISIR or valid SAR no later than 180 days after its determination of a student's withdrawal or, for a student who did not withdraw, 180 days after the date the student otherwise became ineligible, but not later than September 28, 2012.
Table B provides the earliest submission and deadline dates for institutions to submit Federal Pell Grant and Iraq and Afghanistan Service Grant disbursement records to the Department's Common Origination and Disbursement (COD) System and deadline dates for requests for administrative relief if the institution cannot meet the established deadline for specified reasons.
In general, an institution must submit Federal Pell Grant or Iraq and Afghanistan Service Grant disbursement records no later than 30 days after making a Federal Pell Grant or Iraq and Afghanistan Service Grant disbursement or becoming aware of the need to adjust a student's previously reported Federal Pell Grant or Iraq and Afghanistan Service Grant disbursement. In accordance with the regulations in 34 CFR 668.164, we consider that Federal Pell Grant and Iraq and Afghanistan Service Grant funds are disbursed on the date that the institution: (a) Credits those funds to a student's account at the institution or (b) pays those funds to a student directly. We consider that Federal Pell Grant and Iraq and Afghanistan Service Grant funds are disbursed even if an institution uses its own funds in advance of receiving program funds from the Department. An institution's failure to submit disbursement records within the required 30-day timeframe may result in an audit or program review finding. In addition, the Secretary may initiate an adverse action, such as a fine or other penalty for such failure, in accordance with subpart G of part 668.
Table C provides the earliest submission and deadline dates for institutions to submit Direct Loan and TEACH Grant disbursement records to the Department's COD System.
In general, an institution must submit Direct Loan or TEACH Grant disbursement records no later than 30 days after making a Direct Loan or TEACH Grant disbursement or becoming aware of the need to adjust a student's previously reported Direct Loan or TEACH Grant disbursement. In accordance with the regulations in 34 CFR 668.164, we consider that Direct Loan and TEACH Grant funds are disbursed on the date that the institution: (a) Credits those funds to a student's account at the institution, or (b) pays those funds to a student directly. We consider that Direct Loan and TEACH Grant funds are disbursed even if an institution uses its own funds in advance of receiving program funds from the Department. An institution's failure to submit disbursement records within the required 30-day timeframe may result in an audit or program review finding. In addition, the Secretary may initiate an adverse action, such as a fine or other penalty for such failure.
We publish a detailed discussion of the Federal student aid application process in the following publications:
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•
•
•
Additional information on the institutional reporting requirements for the Federal Pell Grant Program, Iraq and Afghanistan Service Grant Program, Direct Loan Program, and TEACH Grant Program is contained in the 2011-2012
You may access these publications by selecting the “Publications” link at the Information for Financial Aid Professionals Web site at:
(1) Student Assistance General Provisions, 34 CFR part 668,
(2) Federal Pell Grant Program, 34 CFR part 690,
(3) William D. Ford Direct Loan Program, 34 CFR part 685, and
(4) Teacher Education Assistance for College and Higher Education Grant Program, 34 CFR part 686.
Ian Foss, U.S. Department of Education, Federal Student Aid, 830 First Street, NE., Union Center Plaza, Room 114I1, Washington, DC 20202-5345. Telephone: (202) 377-3681. Email:
If you use a telecommunications device for the deaf (TDD) or text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under
You may also access documents of the Department published in the
20 U.S.C. 1070a, 1070a-1, 1070b-1070b-4, 1070g, 1070h, 1087a-1087j, and 1087aa-1087ii; 42 U.S.C. 2751-2756b.
Office of Environmental Management, U.S. Department of Energy.
Notice of availability.
The Department of Energy (DOE) announces the availability of a draft evaluation which shows that the concentrator feed makeup tank and melter feed hold tank (the vessels) which were used in conjunction with vitrifying waste from reprocessing of spent nuclear fuel and certain treatment material at the West Valley Demonstration Project (WVDP), located at the Western New York Service Center in West Valley, New York, are waste incidental to reprocessing and thus are not high-level radioactive waste (HLW) and may be managed and disposed of offsite as low-level waste (LLW). DOE prepared the draft evaluation pursuant to DOE Manual 435.1-1,
The comment period will end August 13, 2012. Comments received after that time will be considered to the extent practicable.
The draft waste evaluation is available on the Internet at
For further information about this draft waste evaluation, please contact Mr. Daniel Sullivan at the mailing address or Web site listed in
The vessels were used in the vitrification process to prepare and temporarily store pre-treated HLW slurry supplied to the vitrification melter. They were used as part of the process to solidify the HLW which had been generated by commercial reprocessing of spent nuclear fuel at the Western New York Nuclear Service Center in West Valley, New York, by Nuclear Fuel Services, Inc., from 1966 through 1972. DOE undertook the solidification activities pursuant to DOE's responsibilities under the WVDP Act. To solidify the waste, DOE vitrified the waste (combined it at a high temperature with borosilicate glass) and transferred the molten glass-waste mixture into specially developed stainless steel canisters where the mixture hardened into a solid glass waste form.
DOE operated the vitrification system between 1996 and 2002. In 2002, prior to shut down, the vessels were flushed with high pressure demineralized water so as to remove key radionuclides to the maximum extent technically and economically practical. The vessels with their remaining residual waste were characterized for radioactivity and determined to have radionuclide concentrations that do not exceed concentration limits for Class C LLW. They were removed from the vitrification cell in 2004 and are presently safely stored at the WVDP in transportation containers that meet Department of Transportation Industrial Package 2 requirements. The vessels were further stabilized by filling them with cement grout. As explained in the draft evaluation, they would be disposed of at a suitable off-site LLW waste disposal facility, either the Area 5 Radioactive Waste Management Site at DOE's Nevada National Security Site (NNSS) in Nevada or the Waste Control Specialists Federal Facility Waste Disposal Facility near Andrews, Texas. DOE would dispose of the vessel waste packages in accordance with applicable waste acceptance criteria using specific waste profile documentation.
DOE Manual 435.1-1, which implements DOE Order 435.1,
(1) Key radionuclides have been removed to the maximum extent that is technically and economically practical;
(2) The waste will be managed to meet safety requirements comparable to the performance objectives set out in 10 Code of Federal Regulations (CFR) part 61, subpart C,
(3) The waste will be managed, pursuant to DOE's authority under the
The draft waste-incidental-to-reprocessing evaluation summarizes DOE's analysis and shows that the vessels:
(1) Have had key radionuclides removed to the maximum extent technically and economically practical;
(2) Will be managed to meet safety requirements comparable to the NRC performance objectives at 10 CFR part 61, subpart C; and
(3) Will be in a solid physical form that does not exceed concentration limits for Class C LLW and will be managed and disposed of pursuant to DOE's authority under the Atomic Energy Act of 1954, as amended, and in accordance with applicable provisions of Chapter IV of DOE Manual 435.1-1.
Accordingly, the draft evaluation demonstrates using the waste-incidental-to-reprocessing evaluation process that the West Valley vessel waste packages may be managed and disposed of as LLW. The vessel waste packages will meet the applicable waste acceptance criteria for the selected offsite LLW disposal facility, either the NNSS Area 5 Radioactive Waste Management Site or the Waste Control Specialists Federal Facility Waste Disposal Facility in Texas. The vessel waste packages have been approved for disposal by the NNSS in case a final decision is made to send the waste package to that site for disposal.
DOE is consulting with the NRC before finalizing this evaluation. Although not required by DOE Manual 435.1-1, DOE is making the draft evaluation available for public and state review and comment during the NRC consultative review period. DOE plans to issue a final determination as to whether the vessels are HLW or can be managed and disposed of as LLW following review and consultation with the NRC and consideration of public and state comments.
DOE's decision on the disposal site to be used is not within the scope of this draft evaluation. Any DOE decision on the facility to which the vessel waste packages would be sent would be made after the final DOE evaluation and determination, following consideration of NRC and public comments on this draft evaluation, and after DOE confers with appropriate State officials in the state where the waste packages may be disposed.
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 May 2012, it issued Orders granting 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, 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 enable a user-based evaluation of submitted entries to the Bright Tomorrow Lighting Competition (L Prize®) competition. The L Prize competition was authorized to encourage development and deployment of highly energy efficient solid-state lighting products. The proposed collection will assist in evaluating the entries in a real-world environment to insure that winning products do not exhibit undesirable or poor qualities that are not identified from formal laboratory testing by the DOE. These undesirable attributes could be a hindrance to sales of the winning product and could negatively impact the energy reduction potential of the competition. Additionally, the DOE wishes to gauge program success by periodically obtaining quantitative data about the effectiveness of the promotions and campaigns which are directly tied to L Prize winners. The quantitative data will be a survey asking five qualitative questions about the occupant's overall satisfaction of the lights. The brief assessments will be collected by the site's partner sponsor and returned, along with the entrant lamps, to DOE at the conclusion of the field assessment.
Comments regarding this collection must be received on or before July 30, 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
James R. Brodrick, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585 or by email at
James R. Brodrick, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585 or by email at
This information collection request contains: (1) OMB No. New; (2) Information Collection Request Title: Bright Tomorrow Lighting Competition (L Prize®): Field Assessment and Post Prize Monitoring; (3) Type of Request: New collection; (4) Purpose: The Bright Tomorrow Lighting Competition was authorized in the Energy Independence and Security Act of 2007 (EISA), Subtitle E, Section 655, to encourage development and deployment of highly energy efficient solid-state lighting (SSL) products to replace several of the most common lighting products currently used in the United States. Field assessments contribute to the evaluation of L Prize entries in a wide range of lighting applications.
The field assessments evaluate energy use of the installed product, the lighting system performance compared to the existing technology, and user feedback. The objective of field testing is to obtain installation data and user acceptance, in order to evaluate the product and determine its potential to be declared a winner. Additionally, DOE plans to monitor the impact of the L Prize competition through post-prize monitoring of incentive programs, educational campaigns, and retail promotions. This monitoring will include measuring the number of customers reached, bulbs sold, energy savings, and other tangible benefits.; (5) Annual Estimated Number of Respondents: 526; (6) Annual Estimated Number of Total Responses: 526; (7) Annual Estimated Number of Burden Hours: 115; (8) Response Obligation: Voluntary. (9) Annual Estimated Reporting and Recordkeeping Cost Burden: $0.
42 U.S.C. 17243.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR § 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Description: Southwest Power Pool, Inc.'s Notice of Cancellation.
Description: Southwest Power Pool, Inc.'s Notice of Cancellation.
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 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on June 21, 2012, pursuant to sections 201, 206, and 306 of the Federal Power Act; 16 U.S.C. 824, 824(e) and 825 (2010) and Rules 206 and 212 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission); 18 CFR 385.206 and 385.212 (2011), Grand Valley Rural Power Lines, Inc., Yampa Valley Electric Association, Inc., Intermountain Rural Electric Association, and Tri-State Generation and Transmission Association, Inc. (collectively, Complainants) filed a formal complaint against the Public Service Company of Colorado (Respondent), alleging that the 10.25 percent “Return on Equity” assessed by the Respondent in the formula rate is unjust and unreasonable.
The Complainants state that a copy of the Complaint has been served on the contact for the Respondent as listed on the Commission list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the A-Line Abandonment Project (Project) which would include the abandonment of facilities by Northern Natural Gas Company (Northern) in Ochiltree, Hansford, Hutchinson, and Carson Counties, Texas; Beaver County, Oklahoma; and Kiowa and Clark Counties, Kansas. This EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues need to be evaluated in the EA. Please note that the scoping period will close on July 25, 2012. Further details on how to submit written comments are provided in the Public Participation section of this notice.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives are asked to notify their constituents of this planned project and encourage them to comment on their areas of concern.
Northern proposes to abandon in by sale to DKM Enterprises, LLC (DKM) for salvage about 126 miles of its A-line consisting of two segments of 24-inch-diameter pipeline. One segment (the Skellytown to Spearman A-line) is about 38 miles long and extends from Northern's abandoned Skellytown Station near Skellytown, Carson County, Texas, to Northern's Spearman Compressor Station in Spearman, Ochiltree County, Texas. The second segment (the Beaver to Mullinville A-line) is about 88 miles long and extends from Northern's Beaver Compressor Station near Beaver, Oklahoma, to its Mullinville Compressor Station near Mullinville, Kansas. Activities Northern would conduct related to the
The general locations of the project facilities are shown in the maps in Appendix 1.
Northern proposes abandoning these facilities by sale to DKM and states that all of its abandonment and DKM's salvage activities would be conducted within Northern's existing right-of-way which Northern would retain. Therefore, there would be no new land use requirements.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the proposed abandonment project under these general headings:
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Endangered and threatened species;
• Public safety; and
• Cumulative impact.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through the Commission's eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section beginning on page 4.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations, we are using this notice to solicit the views of the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC, on or before July 25, 2012.
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP12-469-000) with your submission. The Commission encourages electronic filing of comments and has expert eFiling staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the eComment feature located on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature located on the Commission's Web site (
(3) You may file a paper copy of your comments at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project. If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you wish to receive no further mailings
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on June 21, 2012, pursuant to section 210(h) of the Public Utility Regulatory Policies Act of 1978 (PURPA),
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On May 10, 2012, Dolores Water Conservancy District, Colorado, filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Plateau Creek Pumped Storage Project to be located on Plateau Creek, near the town of Dolores, Montezuma County, Colorado. The project affects federal lands administered by the Forest Service (San Juan National Forest). All filings submitted pursuant to the original June 6, 2012 notice will continue to be considered and do not need to be resubmitted.
The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following new facilities: (1) An upper reservoir, formed by a 130-foot-high by 6,500-foot-long, roller-compacted concrete (RCC) or embankment dam, with a total storage capacity of 8,000 acre-feet and a water surface area of 275 acres at full pool elevation; (2) a lower reservoir, formed by a 270-foot-high by 800-foot-long dam, having a total storage capacity of 9,500 acre-feet and a water surface area of 200 acres at full pool elevation; (3) two 15-foot-diameter steel penstocks consisting of a surface penstock, a vertical shaft, and an inclined tunnel; (4) two 27-foot-diameter tailrace tunnels that would be 850-feet-long; (5) an underground powerhouse containing two reversible pump-turbines totaling 500 megawatts (MW) (2 units × 250 MW) of generating capacity; and (6) a 7-mile-long, 230 kilovolt (kV) transmission line that would connect the switchyard with an existing 230 kV interconnection east of the project area. The project's annual
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Rule 2010 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.2010, provides that, to eliminate unnecessary expense or improve administrative efficiency, the Secretary may establish a restricted service list for a particular phase or issue in a proceeding. The restricted service list should contain the names of persons on the service list who, in the judgment of the decisional authority establishing the list, are active participants with respect to the phase or issue in the proceeding for which the list is established.
The Commission staff is consulting with the Georgia State Historic Preservation Officer (SHPO), the Alabama SHPO, and the Advisory Council on Historic Preservation (Advisory Council) pursuant to the Advisory Council's regulations, 36 CFR part 800, implementing section 106 of the National Historic Preservation Act,
The programmatic agreement, when executed by the Commission, the Georgia SHPO, the Alabama SHPO, and the Advisory Council would satisfy the Commission's section 106 responsibilities for all individual undertakings carried out in accordance with the license until the license expires or is terminated (36 CFR section 800.13(e)).
On April 28, 2011, the Commission staff established a restricted service list for the Bartletts Ferry Hydroelectric Project. On June 14, 2012, the Kialegee Tribal Town requested a revision to the restricted service list. The revision is:
“Henry Harjo” is replaced with “Kelly Davis or Representative.”
On June 14 and June 19, 2012, the Alabama-Quassarte Tribal Town and the United Keetoowah Band of Cherokee Indians in Oklahoma, respectively, requested to be added to the restricted service list. The restricted service list is supplemented to include:
“Augustine Asbury or Representative, Alabama-Quassarte Tribal Town, P.O. Box 187, Wetumka, OK 74883;”
“Lisa LaRue-Baker, Acting THPO, or Representative, United Keetoowah Band of Cherokee Indians in Oklahoma, P.O. Box 748, Tahlequah, OK 74465.”
Rule 2010 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR section 385.2010, provides that, to eliminate unnecessary expense or improve administrative efficiency, the Secretary may establish a restricted service list for a particular phase or issue in a proceeding. The restricted service list should contain the names of persons on the service list who, in the judgment of the decisional authority establishing the list, are active participants with respect to the phase or issue in the proceeding for which the list is established.
The Commission staff is consulting with the Alabama State Historic Preservation Officer (Alabama SHPO) and the Advisory Council on Historic Preservation (Advisory Council) pursuant to the Advisory Council's regulations, 36 CFR part 800, implementing section 106 of the National Historic Preservation Act,
The programmatic agreement, when executed by the Commission, the Alabama SHPO, and the Advisory Council, would satisfy the Commission's section 106 responsibilities for all individual undertakings carried out in accordance with the license until the license expires or is terminated (36 CFR section 800.13(e)). On August 30, 2011, the Commission staff established a
On June 21, 2012, the Choctaw Nation of Oklahoma requested a revision to the restricted service list. The revision is: “Terry Cole, THPO” is replaced with “Dr. Ian Thompson, THPO, or Representative”.
Environmental Protection Agency (EPA).
Notice of Determination.
The Regional Administrator of the Environmental Protection Agency—New England Region, has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the state waters of Vineyard and Nantucket Sounds and the Islands collectively termed Southern Cape Cod.
Ann Rodney, U.S. Environmental Protection Agency—New England Region, Office of Ecosystem Protection, Oceans and Coastal Protection Unit, Five Post Office Square, Suite 100, OEP06-1, Boston, MA 02109-3912. Telephone: (617) 918-1538. Fax number: (617) 918-0538. Email address:
On April 26, 2012, EPA published a notice that the Commonwealth of Massachusetts had petitioned the Regional Administrator, Environmental Protection Agency, to determine that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Southern Cape Cod. Eight comments were received on this petition and all endorsed this designation. The response to comments can be obtained using the above contact information.
The petition was filed pursuant to Section 312(f)(3) of Public Law 92-500, as amended by Public Laws 95-217 and 100-4, for the purpose of declaring these waters a No Discharge Area (NDA).
Section 312(f)(3) states: After the effective date of the initial standards and regulations promulgated under this section, if any State determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters, except that no such prohibition shall apply until the Administrator determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply.
This Notice of Determination is for the waters of Southern Cape Cod. The NDA boundaries are as follows:
The upper-eastern area of the NDA is bound by the Outer Cape NDA:
The small triangle of Commonwealth waters at the mouth of Buzzards Bay will be bound by the following coordinates along the Federal/State boundary line:
The two temporarily undesignated areas will be bound by the following coordinates:
Area 1:
Area 2:
The boundaries were chosen to maximize the area designated, give larger vessels a temporary window in which to comply with this proposed regulation, and generally represent all navigational waters. The Southern Cape Cod NDA will encompass the state waters of Vineyard and Nantucket Sounds and the Islands.
The information submitted to EPA by the Commonwealth of Massachusetts certifies that there are 29 pumpout facilities available to the boating public. The location, contact information, hours of operation, and water depth are provided at the end of this notice.
Based on the examination of the petition and its supporting documentation, and information from site visits conducted by EPA New England staff, EPA has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the area covered under this determination.
This determination is made pursuant to Section 312(f)(3) of Public Law 92-500, as amended by Public laws 95-217 and 100-4.
Environmental Protection Agency (EPA).
Notice of public comment period and listening session.
EPA is announcing a 60-day public comment period and a public listening session for the external review draft human health assessment titled “Toxicological Review of 1,2,3-, 1,2,4-, and 1,3,5-Trimethylbenzene: In Support of Summary Information on the Integrated Risk Information System (IRIS)” (EPA/635/R-11/012A). The draft assessment was prepared by the National Center for Environmental Assessment (NCEA) within the EPA Office of Research and Development (ORD). EPA is releasing this draft assessment for the purposes of public comment and peer review. This draft assessment is not final as described in EPA's information quality guidelines, and it does not represent and should not be construed to represent Agency policy or views.
EPA's Science Advisory Board (SAB) will convene an expert panel for independent external peer review of the draft assessment. The EPA SAB is a body established under the Federal Advisory Committee Act with a broad mandate to advise the Agency on scientific matters. The public comment period and the SAB peer review are separate processes that provide opportunities for all interested parties to comment on the document. The SAB will schedule one or more public peer review meetings, which will be announced in the
EPA is also announcing a listening session to be held on Wednesday, August 1, 2012, during the public comment period. The purpose of the listening session is to allow all interested parties to present scientific and technical comments on the draft IRIS health assessment to EPA and other interested parties attending the listening session. EPA welcomes the scientific and technical comments that will be provided to the Agency by the listening session participants. The comments will be considered by the Agency as it revises the draft assessment after the independent external peer review.
The public comment period begins, June 29, 2012, and ends August 28, 2012. Technical comments should be in writing and must be received by EPA by August 28, 2012.
The listening session on the draft IRIS health assessment for 1,2,3-, 1,2,4-, and 1,3,5-Trimethylbenzene (TMB) will be held on August 1, 2012, beginning at 9 a.m. and ending at 4 p.m., Eastern Time, or when the last presentation has been completed. If you would like to make a presentation at the listening session, you should register by July 25, 2012, following the detailed instructions below under
The draft “Toxicological Review of 1,2,3-, 1,2,4-, and 1,3,5-Trimethylbenzene: In Support of Summary Information on the Integrated Risk Information System (IRIS)” is available primarily via the Internet on the NCEA home page under the Recent Additions and Publications menus at
The listening session on the draft assessment of TMB will be held at the EPA offices at Two Potomac Yard (North Building), 7th Floor, Room 7100, 2733 South Crystal Drive, Arlington, Virginia, 22202. There are two buildings at Potomac Yard, please be sure you go to Building Two, the North Building. Please note that to gain entrance to this EPA building, attendees must register at
A teleconference line will also be available for registered attendees/speakers. The teleconference number is 866-299-3188 and the access code is 926-378-7897, followed by the pound sign (#). The teleconference line will be activated at 8:45 a.m., and you will be asked to identify yourself and your affiliation at the beginning of the call.
IRIS is a database that contains potential adverse human health effects information that may result from chronic (or lifetime) exposure to specific chemical substances found in the environment. The database (available on the Internet at
To attend the August 1, 2012, listening session, register by July 25, 2012, by sending an email to
Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2012-0459 by one of the following methods:
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All documents in the docket are listed in the
For information on the federal docket, contact the Office of Environmental Information Docket; telephone: 202-566-1752; facsimile: 202-566-9744; or email:
For information on the public listening session, please contact Christine Ross, IRIS Staff, National Center for Environmental Assessment, (8601P), U.S. EPA, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone: 703-347-8592; facsimile: 703-347-8689; or email:
If you have questions about the document, contact Allen Davis, National Center for Environmental Assessment (NCEA); telephone: 919-541-3789; facsimile: 919-541-0245; or email:
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
EPA is seeking agencies to participate in its e-NEPA electronic EIS submission pilot. Participating agencies can fulfill all requirements for EIS filing, eliminating the need to submit paper copies to EPA Headquarters, by filing documents online and providing feedback on the process. To participate in the pilot, register at:
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency's (EPA), Science Advisory Board (SAB) Staff Office announces a meeting of the SAB's Scientific and Technological Achievement Awards (STAA) Committee to discuss SAB recommendations regarding the Agency's 2012 STAA recipients. The SAB meeting will be closed to the public.
The SAB meeting dates are Monday and Tuesday, July 23 and 24, 2012, from 8:00 a.m. to 6:00 p.m. (Eastern Time).
The closed SAB meeting will be held at the EPA Potomac Yard Conference Center, South Building, 2777 S. Crystal Drive, Arlington, VA 22202.
Members of the public who wish to obtain further information regarding this announcement may contact Mr. Edward Hanlon, Designated Federal Officer, by telephone: (202) 564-2134 or email at
Environmental Protection Agency.
Notice; request for public comment.
Notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Trinity Superfund Site in Cleveland, Ohio, with the following settling party: Standex International Corporation. The settlement requires the settling party to pay $110,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling party pursuant to Section 107(a) of CERCLA. For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement.
Comments must be submitted on or before July 30, 2012.
The proposed settlement is available for public inspection at the U.S. Environmental Protection Agency, Region 5, 77 West Jackson Blvd., Chicago, Illinois 60604. A copy of the proposed settlement may be obtained from Catherine Garypie, U.S. Environmental Protection Agency, 77 W. Jackson Boulevard (C-14J), Chicago, IL 60604, (312) 886-5825. Comments should reference the Trinity Superfund Site in Cleveland, Ohio and EPA Docket No. V-W-12-C-999 and should be addressed to LaDawn Whitehead, U.S. Environmental Protection Agency, Office of Enforcement and Compliance Assurance, 77 W. Jackson Boulevard, Chicago, IL 60604, (312) 886-3713.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Trinity Superfund Site in Cleveland, Ohio, with the following settling party: Standex International Corporation. The settlement requires the settling party to pay $110,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling party pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at the U.S. EPA Records Center, Room 714, 77 W. Jackson Boulevard, Chicago, IL 60604.
Catherine Garypie, U.S. Environmental Protection Agency, 77 W. Jackson Boulevard (C-14J), Chicago, IL 60604, (312) 886-5825.
Environmental Protection Agency (EPA).
Request for nominations to the Great Lakes Advisory Board (GLAB).
The U.S. Environmental Protection Agency (EPA) is seeking nominations from a diverse range of qualified candidates to be considered for appointment as members of its Great Lakes Advisory Board (GLAB). The GLAB will provide advice and recommendations to the EPA Administrator, in her capacity as Chair of the Great Lakes Interagency Task Force, on matters pertaining to Great Lakes restoration and protection. Vacancies are expected to be filled by September 2012. Sources in addition to this
Nominations must be postmarked by July 30, 2012.
Submit nominations electronically with the subject line “GLAB Nomination 2012” to
Rita Cestaric, Designated Federal Officer, US Environmental Protection Agency, 77 W. Jackson, Chicago, IL 60604; email address:
On May 31, 2012, EPA published in the
The GLAB will be composed of approximately 15 members appointed by the EPA Administrator. In selecting members, EPA will consider candidates representing or serving as liaison to a broad range of interests across the Great Lakes, that may include, but are not limited to, environmental groups, business, agricultural groups, youth groups, foundations, environmental justice groups, academia and state, local and tribal governments. Members will be appointed for two year terms and are eligible for reappointment.
The GLAB will meet approximately two times a year. Additionally, members may be asked to participate in teleconference meetings. The average workload for members will be approximately 4 to 6 hours per month. We are unable to provide honoraria or compensation for service on the GLAB. However, you may receive travel and per diem allowances where appropriate and according to applicable federal travel regulations.
• The background and experiences that would help members contribute to the diversity of perspectives on the GLAB (e.g., economic, social, cultural, educational background, professional affiliations and other considerations);
• Demonstrated experience with Great Lakes issues;
• Leadership experience in Great Lakes organizations, businesses and workgroups;
• Excellent interpersonal and consensus-building skills;
• Ability to volunteer time to attend approximately two in-person meetings a year, participate in teleconference meetings, attend listening sessions with senior-level federal officials, develop policy recommendations and prepare reports and letters of advice; and
• Willingness to commit time to the committee and demonstrated ability to work constructively and effectively on committees.
• Current contact information for the nominee, including the nominee's name, organization (and position within that organization), current business address, email address and daytime phone number;
• Brief statement describing the nominee's interest in serving on the GLAB;
• Resume and a short biography (no more than two paragraphs) describing the professional and educational qualifications of the nominee, including a list of relevant activities and any current or previous service on advisory committees; and
• Letter(s) of recommendation from a third party supporting the nomination. Letter(s) should describe how the nominee's experience and knowledge will bring value to the work of the GLAB.
To help the Agency in evaluating the effectiveness of its outreach efforts, please tell us how you learned of this opportunity.
Federal Communications Commission.
Notice.
In this document, the Wireless Telecommunications and Wireline Competition Bureaus (Bureaus) announce updated data files of census blocks eligible for the Mobility Fund Phase I support to be offered in Auction 901, which is to be held on September 27, 2012.
Short-form applications to participate in Auction 901 are due prior to 6:00 p.m. on July 11, 2012.
Wireless Telecommunications Bureau
This is a summary of the
1. The
2. The files for which the Bureaus now announce updates are available via the link for Attachment A Files at
3. Concurrent with the release of
Federal Communications Commission.
Notice; solicitation of comments.
In this document, the Wireline Competition Bureau (the Bureau) seeks comment on a number of threshold decisions regarding the design of and data inputs to the forward looking cost model, and on other assumptions in the cost models currently in the record.
Comments are due on or before July 9, 2012 and reply comments are due on or before July 23, 2012.
Interested parties may file comments on or before July 9, 2012 and reply comments on or before July 23, 2012. All pleadings are to reference WC Docket Nos. 10-90 and 05-337. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies, by any of the following methods:
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Ted Burmeister, Wireline Competition Bureau at (202) 418-7389 or TTY (202) 418-0484.
This is a synopsis of the Commission's Public Notice in WC Docket Nos. 10-90, 05-337; DA 12-911, released June 8, 2012. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the Internet at
1. In the Public Notice (Notice), the Wireline Competition Bureau (Bureau) identifies several significant threshold model design decisions and seeks comment on specific proposals for the design of the model and data inputs to be used. This is not an exhaustive list of such issues, but represents the next step in the open, deliberative process to determine the design of the model the Bureau will ultimately adopt. The Bureau also seeks comment on commenters' identification of additional issues that need to be developed in the record of this proceeding.
2. The Notice first seeks comment on what wireline network technology and design the model should use to calculate costs. This question includes the important threshold matters of whether the model should presume green-field or brown-field deployment and whether the model should estimate the costs of Fiber-to-the-Premises (FTTP) or Digital Subscriber Line (DSL) (including Fiber-to-the-Node (FTTN)) technology. Closely related is the question of what terminal value to assign to the modeled network—book
3. In addition, to expedite the model development process, the Bureau also initiates comment on data inputs—specifically, on data sources relating to geography and carrier plant. The geographic information systems (GIS) inputs on which this Notice seeks comment include the definitions of existing wire center boundaries and broadband footprints, and the locations of business and residential customers. Plant-related data questions raised in this Notice relate to plant mix (
4. Finally, the Bureau seeks comment on the models submitted by the ABC Coalition and ACS. Specifically, the Bureau asks that commenters identify model design decisions, inputs, or other assumptions included in those models that require further analysis and record development.
5. The Bureau presents and seeks comment on several approaches for addressing each of the model design issues summarized above. The Bureau encourages commenters to address in depth how to address the potential limitations of some approaches or to propose additional alternatives, including hybrid approaches that bring the benefits of multiple methodologies. Similarly, although the Bureau references the models filed by the ABC Coalition and ACS, and encourages commenters to address those models specifically, commenters should not be constrained by the assumptions contained in those models.
6. Commenters should explain in detail why the positions they argue for are preferable to others, supporting their positions with arguments grounded in economic principles, data and analysis. Commenters are encouraged to take a position on each of the issues addressed herein, and explain how those positions, in combination, establish a reasonable approach to modeling and are consistent with the requirements set forth in the
7. The choices of network technology (
8. The Bureau emphasizes that model design choices will not obligate providers to deploy the modeled technology—providers can deploy any technology that meets the obligations laid out in the
9. Consistent with the
10. Several interdependent issues need to be resolved regarding network technology, design, and valuation: (1) How much of the network the model assumes to pre-exist, (2) whether the model assumes the connection to the customer location is wholly fiber or some mixture of fiber and copper wire, and (3) how the model should calculate the value of the network at the end of the modeling period.
11. The first issue is the amount of the modeled network that the model assumes will be newly built. Because the two approaches to resolving this embedded issue are aligned with either the green-field or brown-field approach, this Notice discusses the issues together.
12. One approach (“green-field”) is to model costs assuming that the entire network, from the local central office to each end-user location, is newly built. The network is assumed to be built in its entirety, typically along roads or other rights of way. A green-field model may retain central offices in their existing locations and hold wire center boundaries constant (scorched node). This is the approach taken in the ABC Coalition model.
13. Another approach (brown-field) is to assume that only a part of the network will be built, and to therefore model only the costs associated with those network upgrades. This approach relies on existing assets as part of the modeled network. Some parts of the network are upgraded as necessary to achieve the necessary levels of connectivity. Other existing network assets, typically twisted-pair copper, are retained because, with the other upgrades, they provide sufficient connectivity.
14. The second issue is whether the Bureau should model the costs associated with fiber-to-the-premises (FTTP) technology, or with technology that relies in part on twisted-pair copper like digital subscriber line (DSL) or fiber to the node (FTTN). The choice of what technology to model does not obligate providers to deploy that technology. The requirements laid out in the
15. As the name suggests, in an FTTP network, fiber optic cables are run from the central office to each end-user location. This example assumes the use
16. A DSL network that relies on the twisted-pair infrastructure includes both fiber-optic and twisted-pair copper connections. DSL Access Multiplexers (DSLAMs) are placed so that the longest copper loop between the DSLAM and end-user location is shorter than some maximum length like 5,000 or 12,000 feet, as necessary to achieve the modeled level of connectivity. These DSLAMs are presumed to be connected to the central office by fiber optic cable. The ABC Coalition model estimates the cost of a DSL network.
17. The third issue is how the model should calculate the terminal value of the network at the end of the modeling period.
18. Some network assets are particularly long-lived, with accounting lifetimes of 20 or more years, and economic lifetimes that are even longer (
19. The
20. The extent to which the model includes costs that reflect the value of longer-lived assets is likely to be a large driver of support amounts. A green-field FTTP deployment would likely have significant commercial value after five years, even in high-cost areas, given that it scales more readily to higher-speed services than DSL and would have many years of depreciable life (and possibly even more actual) remaining. The commercial value and remaining life of a brown-field DSL deployment is less clear.
21.
22.
23.
24. The decisions regarding network technology, design, and terminal value together define a possible model approach. As discussed below, the Bureau proposes two approaches: green-field FTTP paired with book value; or brown-field DSL paired with zero value. The Bureau also seeks comment on the ABC Coalition's proposal to use a green-field DSL model. The Bureau seeks public input on its analysis as set forth below.
25. To the extent that parties support alternative model designs not discussed here, including other variants of networks that use both fiber- and copper-based connections, such as hybrid-fiber coax (HFC) networks, the Bureau asks that the parties use their comments to justify those alternatives. The parties should address how their favored alternatives meet the criteria set forth above—precision, accuracy, simplicity, accessibility, administrative feasibility, and the cost of implementation—as well as any other criteria the parties believe relevant to the choice of model designs.
26.
27. However, a green-field FTTP model would also make annual cost and support levels highly dependent on the terminal value, because the explicit modeling period is much shorter than the lifetime of many of the assets in the model. Given the degree of uncertainty associated with estimating commercial value, it may be inappropriate to use commercial value to determine the terminal value. However, because the commercial value is likely to be significant, using zero terminal value with the green-field FTTP approach would likely provide an excessive benefit. The Bureau therefore proposes to use book value as the terminal value, if a green-field FTTP approach is adopted.
28. A green-field FTTP approach may have drawbacks as well. Relative to a brown-field model, a green-field model using any technology is likely to calculate higher costs and require higher support levels per location (
29.
30. There are likely to be disadvantages associated with a brown-field DSL approach, however. The ability of a given loop length to deliver desired speed depends on age and quality of existing plant, and on the gauge of the copper wires. It is unclear if the necessary data for existing copper deployments are available. As a result, the brown-field approach may require modeling existing networks and assets or making sweeping generalizations about average conditions. In addition, increasing offered broadband speed (
31. The Bureau also notes that the use of a brown-field model makes the availability of some data sets more important (
32. The brown-field DSL model also would need to capture costs associated with exhaust of capacity in existing aggregation facilities that is driven by the addition of new served locations. Although the brown-field DSL approach likely results in lower costs and support per location, this is dependent on terminal value calculation. Under the brown-field DSL approach, the Bureau proposes that the model would assume that, at the end of the modeling period, assets would have zero value. A DSL network with only limited upgrades could have small commercial value, especially if another service provider receives support under a program subsequent to CAF Phase II, but estimating actual commercial value is difficult and uncertain. For that reason, using a terminal value of zero could reasonably approximate the value of the network without the added complexity of estimating commercial value. This approach would ensure that calculated costs reflect the entire cost of network upgrades, including possible impairment of value in an unfavorable commercial environment. The Bureau seeks comment on this analysis.
33.
34. There appear to be significant disadvantages of a green-field DSL approach. First, it is only forward looking from the perspective of decisions made a decade or more in the past (
35. The Commission concluded in the
36. Most costs in a network are shared costs. For example, feeder cabling is shared among all end-users served by that feeder; even cabling in the distribution plant is often shared among multiple end user locations. The method used to attribute the costs of shared plant to individual end users or to census block or smaller areas will affect the relative cost of serving different areas.
37. The Bureau thus must determine how to estimate network costs consistent with the requirement in the
38. A simplified example of this issue: In a given area served by a single central office, most of the homes served are clustered together in a small area. These homes are served by an unsubsidized cable company and are in a census block (or smaller area) that is ineligible for CAF support. Three remaining homes are in a different census block outside the footprint of the
39.
40.
41. Modeling the costs associated with a complete network (
42. Second, in the
43. For these reasons, the Bureau proposes to model the entire network and assign shared costs between eligible and ineligible areas to determine support amounts. The Bureau seeks comment on this proposal and on its analysis of the relative attributes of each alternative.
44. A related question is how to allocate costs consistent with the requirement in the
45.
46. An example of how this calculation would be performed: Assume a service area that includes two areas, X and Y. Area X represents an area (
47. Two related issues complicate this scenario. The Bureau needs to (1) determine how to maximize the number of locations served with the $1.8 billion budget, and (2) determine the threshold for which locations will be served by the Remote Areas Fund designed to ensure service to the most costly locations. As a result, the model needs to determine not just the cost of a single incremental addition to the network, but the cost of building out many areas—when the cost of each area can affect the cost of the others.
48. A slightly more complicated example highlights the challenges associated with such a calculation. In addition to the commercially viable Area X, there are three areas that are eligible for support: A, B and C. In this simplified example, those three areas hold individual homes, but they could also be groups of homes.
49. The cost of serving each of these areas depends in part on whether the other areas are served. For example, if a provider builds network to area A, then the cost for building to areas B and C could be lower; similarly if network is built to area B, the cost to serve area C could be lower. Determining the cost of building each area then depends on what other areas eventually get service. Therefore a model would need to calculate cost (X), cost (X + A), cost (X + B), cost (X + C), cost (X + A + B), cost (X + A + C), cost (X + B + C) and cost (X + A + B + C). After the Bureau determines which areas are to be included (i.e., which areas are eligible for support instead of being moved into the Remote Area Fund), then calculating the incremental costs of those areas would be straightforward. Note that this method effectively averages the costs of areas are included: In the above example, determining the cost (A + B) by calculating the cost (X + A + B) and subtracting cost (X) averages the cost of areas A and B together.
50. The subtraction methodology may be a computationally difficult method of allocating costs. There are hundreds of thousands of unserved census blocks in the country, meaning a multiple of that many permutations; this, in turn, will require many more model runs than an allocation approach. In addition, the approach presumes the Bureau has determined which areas are sufficiently
51.
52. The Bureau proposes to use a subtractive approach, provided that a computationally tractable method can be found, because the subtractive approach ensures that only the costs that would not otherwise be incurred are attributed to each area, which the Bureau believes provides the best estimate of the economic costs of serving an area. The Bureau seeks comment on this proposal.
53. The main advantage of the pro-rata or other formula approach is that it involves straightforward calculations without the computational complexity of the subtraction approach. However, a pro-rata or other formula-based approach may not estimate the economic costs of serving any area with a high degree of accuracy. Moreover, it may not capture that an area is commercially viable without a subsidy (
54. The Bureau seeks comment on its proposal and analysis of alternatives. With respect to the pro rata or formula approach, the Bureau seeks comment on which formula or method of allocating costs could or should be used and the advantages or disadvantages of each.
55. High-cost areas are likely to include a mix of both served and unserved locations. Some locations in areas with high long-run incremental costs may already have broadband because they had previously been subject to other forms of regulation (such as rate-of-return regulation) that compensated carriers' costs on a different basis, because they had received legacy high-cost support, or because the existence of commercially viable service areas nearby reduced the incremental cost of providing broadband such that there was a business case to invest. Should the model include and calculate support for high-cost areas that are already served?
56.
57.
58. The Bureau proposes to include areas that already are served by broadband in cost and support calculations. The Bureau seeks comment on its analysis on this issue.
59. In the
60. With regard to the cost benchmark, the Commission stated that it would use the model “to identify those census blocks where the cost of service is likely to be higher than can be supported through reasonable end-user rates alone.” The ABC plan proponents proposed a benchmark of $80 per loop per month.
61. With regard to the RAF threshold, the Commission also concluded that “a small number of extremely high-cost census blocks that should receive funding specifically set aside for remote and extremely high-cost areas * * * rather than receiving CAF Phase II support.” The Commission found that excluding these extremely high-cost areas was consistent with its “recognition that the very small percentage of households that are most expensive to serve via terrestrial technology represent a disproportionate share of the cost of serving currently unserved areas.” The Commission exempted those areas from the broadband service requirements associated with the CAF and set aside at least $100 million to serve those areas through alternative technologies subject
62. The Bureau seeks comment on how best to determine the low-end threshold for determining which census blocks should receive support and the extremely high cost threshold to identify the areas eligible for the Remote Area Fund.
63. In setting these thresholds, the Bureau is mindful of certain principles established by the Commission in the
64. Given these principles, the Bureau could first establish the extremely high-cost threshold by taking into consideration the Commission's anticipation that fewer than one percent of American homes would be above the threshold and the size of the RAF. The Bureau could then calculate how far below the extremely high-cost benchmark the $1.8 billion CAF Phase II budget could extend, the result being the cost benchmark. Alternatively, the Bureau could first determine the cost benchmark using the principle that it should identify places where the cost of service exceed reasonable end user rates alone, and then calculate the extremely high-cost benchmark based on the $1.8 billion CAF Phase II budget. Under this alternative the Bureau would need to ensure that the resulting extremely high-cost benchmark did not cause more than one percent of American households to be covered by the RAF or unduly increase the size of the RAF.
65. As suggested by the State Members of the Joint Board, another possibility is to establish the extremely high-cost threshold at a level approximately the same as the price of satellite broadband service. Also, the ABC plan proposed to limit support to no more than $176 per line per month which, given the $80 cost benchmark it proposed, would effectively set the threshold for extremely high-cost areas at $256 per line per month.
66. The Bureau seeks comment on these alternative methods of calculating the CAF Phase II cost benchmark and the extremely high-cost threshold.
67. In this section, the Bureau seeks comment on seven data source issues. Four relate to geographic information systems (GIS) data: wire center boundaries, boundaries of existing broadband footprints, business locations, and consumer locations. The other three issues relate to carrier plant: the outside plant mix for individual carriers, the age of the carriers' plant, and the gauge of the carriers' copper wire plant. The Bureau also seeks comment regarding methods of validating data inputs generally.
68.
69.
70.
71.
72. The commercial data approach should be more accurate than efficient routing. Efficient routing would underestimate costs in some areas because it would model network deployments that are significantly different from what providers would actually implement given the constraints of existing wire centers. Efficient routing would also be inconsistent with both a scorched node approach to a green-field model and a brown-field model.
73. Although commercial data may not achieve as high a degree of accuracy as a newly developed data set, developing a data source will likely require a significant amount of time. Also, the Bureau notes that the footprints of providers eligible for CAF Phase II support are quite large, so any small error is likely to average out. Moreover, any overstatement of footprint by including uninhabited areas will not affect costs for a model that relies on demographic information.
74. A hybrid approach involving a commercial data source supplemented by data collected from service providers or efficient routing may also make sense or prove necessary in some areas that are not covered by those sources.
75. The Bureau proposes to use wire center boundaries obtained through a new data collection as described above, or in the alternative, commercial datasets, such as TeleAtlas, if the data collection can not be completed in time for the model development process. The Bureau seeks comment on the relative merits of each alternative.
76.
77.
78.
79. The Bureau does not propose a particular data source for existing broadband footprints at this time but seeks comment on each alternative and the Bureau's analysis of the relative attributes of each.
80.
81.
82.
83. The Bureau proposes to use government data for business locations and seeks comment on its analysis of the alternatives.
84.
85.
86.
87.
88. The Bureau proposes to use a commercial data set for customer locations and seeks comment on its analysis of the relative merits of each alternative.
89.
90.
91.
92. The Bureau proposes to use provider-submitted data for plant-mix data and seeks comment on its analysis. In particular, the Bureau seeks comment on how best to validate provider-submitted data.
93.
94.
95.
96. The Bureau seeks comment on these alternatives and its analysis of the relative attributes of each.
97.
98.
99.
100. The Bureau seeks comment on these alternatives and its analysis of the relative attributes of each.
101.
102.
103. In addition to the comment sought above on particular design decisions and data sources used in the models in the record, the Bureau also seeks comment on the ABC Plan's CQBAT model and the ACS model in light of the established transparency standard. Specifically, the Bureau asks parties to identify any issues of availability that the Bureau should address. The Bureau notes that at least 15 parties have gained access to the models in the record through the protective order process. The Bureau asks parties to identify outstanding questions relating to the verifiability of the underlying data, the reasonableness of engineering or economic assumptions, the reasonableness of model design decisions and choices of data sources additional to those identified here, and the plausibility of outputs on which the Bureau should seek further information for the record, either from the parties that submitted the models or from other interested parties through additional comment, workshops, or other record development processes.
104. This document contains proposed new information collection requirements. The Bureau, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Bureau seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.
105. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Bureau has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice. Written comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the
106. The Notice seeks comment on a variety of issues relating to the design of a model to estimate the forward-looking economic costs of providing broadband to high-cost areas. The model will be to calculate support levels to be provided to price cap carriers and their affiliates that accept their right of first refusal and deploy services consistent with the obligations set forth in the
107. The legal basis for any action that may be taken pursuant to the Notice is contained in sections 1, 2, 4(i), 214, 254, 303(r), 403, and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 214, 254, 303(r), 403, and 706, and §§ 1.1 and 1.1421 of the Commission's rules, 47 CFR 1.1, 1.421.
108. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
109.
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113. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
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118. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2007 show that there were a total of 512 firms that operated for the entire year. Of this total, 464 firms had annual receipts of under $10 million, and 18 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by rules adopted pursuant to the FNPRM.
119. The second category of Other Telecommunications “primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.” For this category, Census Bureau data for 2007 show that there were a total of 2,383 firms that operated for the entire year. Of this total, 2,346 firms had annual receipts of under $25 million. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action.
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125. In this Notice, the Commission seeks public comment on model design and input issues associated with a forward-looking economic cost model to be used to determine support for price cap carriers and their affiliates pursuant to Phase II of the Connect America Fund. The Notice seeks comment on possible data inputs that would require reporting by small entities. Specifically, the Notice seeks comment on the use of wire center boundaries based on data collected from local exchange carriers, the use of residential location data collected from service providers, and the use of data from local exchange carriers regarding their mix of aerial, underground and buried plant, the age of existing plant, and the gauge of existing twisted-pair copper plant.
126. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
127. The Notice seeks comment on a number of model design and inputs questions. The model design issues are not anticipated to have a significant economic impact on small entities insofar as the results produce high-cost support amounts for price cap carriers and their affiliates that accept the right of first refusal pursuant to CAF Phase II. This is primarily because most (and perhaps all) of the affected carriers are not small entities. Moreover, the choice of alternatives discussed is not anticipated to systematically increase or decrease support for any particular group of entities and therefore any significant economic impact cannot necessarily be minimized through alternatives.
128. In one respect, the model design may have a significant economic impact on small entities. The Notice seeks comment on using the model to set the “extremely high-cost” threshold, which would identify “remote areas.” Such areas will be included in the Remote Areas Fund if they are in a price cap service territory, and would thus be subject an alternative support mechanism that could include small entities. The definition of such areas could also affect the service obligations of rate-of-return carriers, many of which are small entities. The Bureau does not propose a specific methodology for establishing the extremely high-cost threshold, but seeks broad comment on how to do so. The Bureau anticipates that it will consider alternatives, including those that would minimize the significant economic impact on small entities.
129. None.
130.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325,
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
131.
132. The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Currently, the FDIC is soliciting comment on renewal of the information collection described below.
Comments must be submitted on or before August 28, 2012.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Gary A. Kuiper, at the FDIC address above.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 26, 2012.
A. Federal Reserve Bank of San Francisco (Kenneth Binning, Vice President, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
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Board of Governors of the Federal Reserve System, June 26, 2012.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 26, 2012.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
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In addition, Carrollton Bank will merge with Bay Bank, FSB, Lutherville, Maryland, with Bay Bank, FSB, as the surviving entity.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice advises of the cause and effect of termination of Direct Endorsement (DE) Approval taken by HUD's Federal Housing Administration (FHA) against HUD-approved mortgagees through the FHA Credit Watch Termination Initiative. This notice includes a list of mortgagees which have had their DE Approval terminated.
The Quality Assurance Division, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room B133-P3214, Washington, DC 20410-8000; telephone 202-708-2830 (this is not a toll-free number). Persons with hearing or speech impairments may access that number through TTY by calling the Federal Relay Service at 800-877-8339.
HUD has the authority to address deficiencies in the performance of lenders' loans as provided in HUD's mortgagee approval regulations at 24 CFR 202.3. On May 17, 1999, HUD published a notice (64 FR 26769), on its procedures for terminating Origination Approval Agreements with FHA lenders and placement of FHA lenders on Credit Watch status (an evaluation period). In the May 17, 1999 notice, HUD advised that it would publish in the
Loans that closed or were approved before the Termination became effective may be submitted for insurance endorsement. Approved loans are those already underwritten and approved by a DE underwriter, and cases covered by a firm commitment issued by HUD. Cases at earlier stages of processing cannot be submitted for insurance by the terminated mortgagee; however, the cases may be transferred for completion of processing and underwriting to another mortgagee with DE Approval in that area. Mortgagees are obligated to continue to pay existing insurance premiums and meet all other obligations associated with insured mortgages.
A terminated mortgagee may apply for reinstatement of the DE Approval if the DE Approval for the affected area or areas has been terminated for at least six months and the mortgagee continues to be an approved mortgagee meeting the requirements of 24 CFR 202.5, 202.6, 202.7, 202.10 and 202.12. The mortgagee's application for reinstatement must be in a format prescribed by the Secretary and signed by the mortgagee. In addition, the application must be accompanied by an independent analysis of the terminated office's operations as well as its mortgage production, specifically including the FHA-insured mortgages cited in its termination notice. This independent analysis shall identify the underlying cause for the mortgagee's high default and claim rate. The analysis must be prepared by an independent Certified Public Accountant (CPA) qualified to perform audits under Government Auditing Standards as provided by the Government Accountability Office. The mortgagee must also submit a written corrective action plan to address each of the issues identified in the CPA's report, along with evidence that the plan has been implemented. The application for a new Agreement should be in the form of a letter, accompanied by the CPA's report and corrective action plan. The request should be sent to the Director, Office of Lender Activities and Program Compliance, 451 Seventh Street SW., Room B133-P3214, Washington, DC 20410-8000 or by courier to 490 L'Enfant Plaza, East SW., Suite 3214, Washington, DC 20024-8000.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice advises of the cause and effect of termination of Origination Approval Agreements taken by HUD's Federal Housing Administration (FHA) against HUD-approved mortgagees through the FHA Credit Watch Termination Initiative. This notice includes a list of mortgagees which have had their Origination Approval Agreements terminated.
The Quality Assurance Division, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street SW., Room B133-P3214, Washington, DC 20410-8000; telephone 202-708-2830 (this is not a toll-free number). Persons with hearing or speech impairments may access that number through TTY by calling the Federal Relay Service at 800-877-8339.
HUD has the authority to address deficiencies in the performance of lenders' loans as provided in HUD's mortgagee approval regulations at 24 CFR 202.3. On May 17, 1999 HUD published a notice (64 FR 26769), on its procedures for terminating Origination Approval Agreements with FHA lenders and placement of FHA lenders on Credit Watch status (an evaluation period). In the May 17, 1999 notice, HUD advised that it would publish in the
Loans that closed or were approved before the termination became effective may be submitted for insurance endorsement. Approved loans are those already underwritten and approved by a DE underwriter, and cases covered by a firm commitment issued by HUD. Cases at earlier stages of processing cannot be submitted for insurance by the terminated branch; however, they may be transferred for completion of processing and underwriting to another FHA-insured mortgagee with direct endorsement approval for the area covered by the termination. Mortgagees are obligated to continue to pay existing insurance premiums and meet all other obligations associated with insured mortgages.
A terminated mortgagee may apply for reinstatement of the Origination Approval Agreement if the approval for the affected branch or branches has been terminated for at least six months and the mortgagee continues to be an approved mortgagee meeting the requirements of 24 CFR 202.5, 202.6, 202.7, 202.8 and 202.12. However, Mortgagee Letter 2010-20 and Final Rule 5356-F-02 at 24 CFR part 202 eliminates FHA approval for loan correspondents after December 31, 2010. Therefore, HUD will not accept requests for reinstatement from loan correspondents after that date. The mortgagee's application for reinstatement must be in a format prescribed by the Secretary and signed by the mortgagee. In addition, the application must be accompanied by an independent analysis of the terminated office's operations as well as its mortgage production, specifically including the FHA-insured mortgages cited in its termination notice. This independent analysis shall identify the underlying cause for the mortgagee's high default and claim rate. The analysis must be prepared by an independent Certified Public Accountant (CPA) qualified to perform audits under Government Auditing Standards as provided by the Government Accountability Office. The mortgagee must also submit a written corrective action plan to address each of the issues identified in the CPA's report, along with evidence that the plan has been implemented. The application for a new Agreement should be in the form of a letter, accompanied by the CPA's report and corrective action plan. The request should be sent to the Director, Office of Lender Activities and Program Compliance, 451 Seventh Street SW., Room B133-P3214, Washington, DC 20410-8000 or by courier to 490 L'Enfant Plaza, East SW., Suite 3214, Washington, DC 20024-8000.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received an application from Buckeye Wind, LLC (applicant), for an incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (ESA), for its Buckeye Wind Power Project (project). If approved, the ITP would be for a 30-year period and would authorize the incidental take of an endangered species, the Indiana bat. The applicant has prepared a habitat conservation plan (HCP) that describes the actions and measures the applicant would implement to avoid, minimize, and mitigate incidental take of the Indiana bat. The ITP application also includes a draft implementing agreement (IA). We also announce the availability of a draft Environmental Impact Statement (EIS) that has been prepared in response to the permit application in accordance with the requirements of the National Environmental Policy Act (NEPA). We request public comment on the application and associated documents.
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We request that you send comments only by the methods described above. We will post all information received on
Megan Seymour, Fish and Wildlife Biologist, Ohio Ecological Services Field Office, U.S. Fish and Wildlife Service, 4625 Morse Road, Suite 104, Columbus, OH 43230; 614-416-8993, extension 16; or Rick Amidon, Fish and Wildlife Biologist, Ecological Services, Midwest Regional Office, U.S. Fish and Wildlife Service, 5600 American Blvd., West, Suite 990, Bloomington, MN 55437-1458; 612-713-5164.
We have received an application from Buckeye Wind, LLC, for an incidental take permit (TE66315A) under the ESA (16 U.S.C. 1531
The applicant has prepared a draft HCP to cover the construction, operation, maintenance, and decommissioning of the project. The project consists of a wind-powered electric generation facility located in an approximately 80,051-acre area (the action area) located in portions of Union, Wayne, Urbana, Salem, Rush, and Goshen Townships, in Champaign County, Ohio. The draft HCP describes the following: (1) Biological goals and objectives of the HCP; (2) the covered activities; (3) permit duration; (4) permit area; (5) alternatives to the taking that were considered; (5) public participation; (6) life history of the Indiana bat; (6) a quantification of the take for which authorization is requested; (7) an assessment of direct and indirect effects of the taking on the Indiana bat within the action area and within the Midwest Recovery Unit (as delineated in the 2007 Indiana Bat Draft Recovery Plan, USFWS); (8) a conservation program consisting of avoidance and minimization measures, mitigation, monitoring, and adaptive management; (9) funding for the HCP; (10) procedures to deal with changed and unforeseen circumstances; and (11) methods for ITP amendments.
In addition to the draft HCP, the applicant has prepared an Implementing Agreement (IA) to document the responsibilities of the parties. The USFWS invites comment on the IA as well as the applicant's HCP.
Under the NEPA (43 U.S.C. 4321
1. Determine the impacts and formulate alternatives for an EIS related to:
a. Issuance of an ITP to the applicant for the take of the Indiana bat, and
b. Implementation of the associated HCP; and
2. Evaluate the application for ITP issuance, including the HCP, which provides measures to minimize and mitigate the effects of the proposed incidental take of Indiana bat.
Buckeye Wind, LLC, is a wholly owned subsidiary of EverPower Wind Holdings, Inc. (EverPower).
The project has been in the planning and development phase since 2006. Indiana bats were discovered in and around the Buckeye Wind action area during pre-construction wildlife surveys in 2008 and 2009. Because wind power projects across the eastern United States have been documented to cause mortality of bats in general, and Indiana bats specifically, Buckeye Wind determined it was appropriate to develop an HCP and apply for an ITP to authorize the potential incidental take of Indiana bats from construction, operation, maintenance, and decommissioning of the project. The HCP was developed by Buckeye Wind and their consultants, in coordination with the Service.
The HCP provides a detailed conservation plan to ensure that the incidental take caused by the project will not appreciably reduce the likelihood of the survival and recovery of the covered species in the action area or in the recovery unit, and provides mitigation to fully offset the impact of the taking. Further, the HCP provides a long-term monitoring and adaptive management strategy to ensure that the ITP terms are satisfied, and to account for changed and unforeseen circumstances.
In accordance with NEPA, the Service has prepared an EIS to analyze the impacts to the human environment that would occur if the requested ITP were issued and the associated HCP were implemented.
Section 9 of the ESA prohibits the “taking” of threatened and endangered species. However, provided certain criteria are met, the Service is authorized to issue permits under section 10(a)(1)(B) of the ESA for take of federally listed species when, among other things, such a taking is incidental to, and not the purpose of, otherwise lawful activities. Under the ESA, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect endangered and threatened species, or to attempt to engage in any such conduct. Our implementing regulations define “harm” as an act which actually kills or injures wildlife, and such act may include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering (50 CFR 17.3). Harass, as defined, means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering” (50 CFR 17.3).
The HCP analyzes, and the ITP would cover, take from harassment, harm, and killing of bats due to the construction, operation, maintenance, and decommissioning associated with the project. If issued, the ITP would authorize incidental take consistent with the applicant's HCP and the permit. To issue the ITP, the Service must find that Buckeye Wind's application, including its HCP, satisfies the criteria of section 10(a)(1)(B) of the ESA and the Service's implementing regulations at 50 CFR parts 13 and 17.22. If the ITP is issued, the applicant would receive assurances under the Service's No Surprises policy, as codified at 50 CFR 17.22(b)(5).
Buckeye Wind proposes to construct and operate a maximum of 100 wind turbines and associated facilities (described below) for a period of 30 years in eastern Champaign County, Ohio. The project will consist of wind turbines, associated access roads, an underground and aboveground electrical collector system, a substation for connection of the wind turbines to the local transmission system, four permanent meteorological towers, and an operations and maintenance building. In addition, up to four temporary construction staging areas
While approximately 80,051 acres are located within the Buckeye Wind action area, a relatively small portion of that land, approximately 0.16 percent (129.8 acres), will be permanently occupied by the project facilities. Beyond the approximately 129 acres of occupied area, as described in Section 2.2 of the HCP, the project will not impact or change the existing land use.
The draft HCP describes the impacts of take associated with Buckeye Wind's activities and includes measures to avoid, minimize, mitigate, and monitor the impacts of incidental take on the Indiana bat. Buckeye Wind will be mitigating for take and associated impacts through permanent preservation, enhancement, and restoration of suitable Indiana bat habitat within 7 miles of a Priority 2 Indiana bat hibernaculum (USFWS, 2007, Draft Indiana Bat Recovery Plan) in Ohio. Mitigation will occur on private lands and will be permanently protected by a conservation easement held by a third-party conservation organization. Section 6.3 of the HCP describes the details of compensatory mitigation and its implementation. The HCP also includes numerous avoidance and minimization measures, as described in sections 6.1 through 6.2, as well as adaptive management, as described in section 6.5, which will limit the take of the Indiana bat.
The Service is soliciting information regarding the adequacy of the HCP to avoid, minimize, mitigate, and monitor the proposed incidental take of the covered species and to provide for adaptive management. In compliance with section 10(c) of the ESA (16 U.S.C. 1539(c)), the Service is making the ITP application materials available for public review and comment as described above.
We invite comments and suggestions from all interested parties on the draft documents associated with the ITP application (HCP, HCP Appendices, and IA), and request that comments be as specific as possible. In particular, we request information and comments on the following topics:
1. Whether adaptive management and monitoring provisions in the Proposed Action alternative are sufficient;
2. Any threats to the covered species that may influence its population over the life of the ITP that are not addressed in the HCP or EIS;
3. Any new information on white-nose syndrome effects on the covered species;
4. Whether the models and model inputs used to estimate risk to the covered species are appropriate; and
5. Any other information pertinent to evaluating the effects of the proposed action on the Indiana bat.
The draft EIS contains an analysis of four alternatives: (1) No Action (no permit issuance); (2) Proposed Action—Modified Operations Alternative, including implementation of the HCP and Issuance of a 30-year ITP; (3) Maximally Restricted Operations Alternative, without an HCP or ITP; and (4) Minimally Restricted Operations Alternative and Issuance of a 30-year ITP. The draft EIS considers the direct, indirect, and cumulative effects of the alternatives, including any measures under the Proposed Action alternative intended to minimize and mitigate such impacts. The draft EIS also identifies additional alternatives that were considered but were eliminated from consideration as detailed in Section 2.3 of the EIS.
The Service invites comments and suggestions from all interested parties on the content of the draft EIS. In particular, information and comments regarding the following topics are requested:
1. The direct, indirect, or cumulative effects that implementation of any alternative could have on the human environment;
2. Whether or not the significance of the impact on various aspects of the human environment has been adequately analyzed; and
3. Any other information pertinent to evaluating the effects of the proposed action on the human environment.
You may submit your comments and materials concerning the notice by one of the methods listed in
If you submit a comment via
Comments and materials we receive, as well as documents associated with the notice, will be available for public inspection on
We provide this notice under section 10(c) of the ESA (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice of Availability.
This notice advises the public that the Bureau of Indian Affairs (BIA) as the lead Federal agency, with the Menominee Indian Tribe of Wisconsin (Tribe), the National Indian Gaming Commission (NIGC), the City of Kenosha, and Kenosha County, as cooperating agencies, has prepared a Final Environmental Impact Statement (FEIS) for the proposed approval of a 223-acre fee-to-trust transfer and the construction of a casino-hotel complex. This notice also announces the FEIS is now available for public review. Hard copies are available upon request or may be found at the addresses indicted in the
The Record of Decision on the proposed action will be issued no sooner than 30 days after the release of the FEIS. Thus, any comments on the FEIS must arrive at the addresses indicated below by July 30, 2012.
You may request a copy of the FEIS, by contacting Scott Doig, Regional Environmental Protection Specialist, Midwest Region, Bureau of Indian Affairs, 5600 West American Boulevard, Suite 500, Bloomington, Minnesota 55437, telephone (612) 725-4514, fax (612) 713-4401.
Scott Doig, Regional Environmental Protection Specialist, Midwest Region, Bureau of Indian Affairs, 5600 West American Boulevard, Suite 500, Bloomington, Minnesota 55437, telephone (612) 725-4514, fax (612) 713-4401.
The Tribe has asked the BIA to take 223 acres of land into trust on behalf of the Tribe, on which the Tribe proposes to develop a casino-hotel complex. The proposed project is located at the site of the existing Dairyland Greyhound Park, at 5522-104th Ave., Kenosha, Wisconsin 53144. The property is approximately one half mile east of Interstate 94, and approximately 35 miles south of Milwaukee, Wisconsin. The BIA serves as lead agency for compliance with the National Environmental Policy Act. The Tribe, the NIGC, the City of Kenosha, and Kenosha County, as entities having jurisdiction and special expertise relevant to potentially affected resources, are acting as cooperating agencies.
The project design includes taking the 223-acre Dairyland Greyhound Park property into trust for the Tribe, and the development of a casino-hotel complex, while potentially retaining the current greyhound racetrack, structure, concourse and kennel facilities. Future development includes a water park, a second hotel, and a recreational vehicle park. Interim Class III gaming would be conducted inside the existing clubhouse until the new casino is built. The FEIS considers a range of project alternatives, including: (1) Preferred casino-hotel complex; (2) reduced intensity; (3) off-site expansion of existing Keshena facilities; (4) hotel-conference center/recreational development; and (5) no action. Environmental issues addressed in the FEIS include land and water resources, air quality, biological resources, cultural and paleontological resources, socioeconomic conditions, transportation and circulation, land use, public services, noise, hazardous materials, visual resources, environmental justice, cumulative effects, indirect effects and mitigation.
The BIA has afforded other government agencies and the public opportunity to participate in the preparation of this FEIS. The BIA published a Notice of Intent to prepare a Draft Environmental Impact Statement (DEIS) for the proposed action in the
This notice is published pursuant to Sec. 1503.1 of the Council of Environmental Quality Regulations (40 CFR part 1500 through 1508) and Sec. 46.305 of the Department of Interior Regulations (43 CFR part 46), implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4371 et seq.), and is in the exercise of authority delegated to the Assistant Secretary—Indian Affairs by 209 DM 8.
Bureau of Land Management, Interior.
Notice of availability.
The Bureau of Land Management (BLM) announces the Notice of Availability (NOA) of the Record of Decision (ROD) for the KRoad Moapa Solar Facility located in Clark County, Nevada. The Secretary of the Interior approved the ROD on June 21, 2012, which constitutes the final decision of the Department of the Interior.
Copies of the ROD are available upon request from the BLM Southern Nevada District Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada 89130, or via the Internet at the following Web site:
Gregory Helseth, Renewable Energy Project Manager; telephone: (702) 515-5173; mailing address: BLM Southern Nevada District Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada 89130; or email:
The applicant, KRoad Moapa Solar, LLC, (KRoad) filed two right-of-way (ROW) applications to construct a 500 kV transmission line, NVN-89176, as well as an access road, NVN-91072, on BLM administered lands as ancillary facilities for a 350 megawatt (MW) solar generation facility on the Moapa River Indian Reservation (Reservation). The BLM was a cooperating agency with the Bureau of Indian Affairs (BIA) on the KRoad Moapa Solar Facility. The purpose of the project is to provide access to the transmission grid via the Crystal Substation; to supply power to the Moapa Travel Plaza and a water line to the solar energy facility.
The BLM's purpose and need for the proposed Federal action responds to KRoad's application for an up to 500 kV
The Final EIS analyzed three alternatives: The Proposed Action, Alternative I; Reduced Solar Facility Footprint and Alternative 500kV Transmission line; and the No Action Alternative. These alternatives were shaped in part by comments received from the public and internal BLM, BIA, and Tribal review.
The BLM Proposed Action (Selected Alternative) includes an up to 500kV transmission line ROW and parallel access road. The transmission line is approximately 5.5 miles long, with five miles being within the Moapa Band of Paiute Indians reservation (Pub. L. 96-491) in a BLM administered utility corridor, and the remaining half mile on BLM lands. The transmission line ROW would be approximately 5.5 miles long by 150 feet wide and encompass approximately 100 acres. The access road ROW will be within the transmission line ROW foot print and will be approximately 16-24 feet wide and approximately 5.5 miles long. The transmission line and access road provide access to the Crystal substation operated by NV Energy.
The No Action Alternative assumed the BLM ROW's would not be issued.
The NOA (77 FR 15750) for the Final EIS, was published in the
The BLM and the BIA received two letters as a result of the NOA. The BLM and the BIA determined that there were no significant new information presented in the letters that would require reissuance of the Draft or Final EIS. A final response comment table is attached to the ROD as (Attachment B). Because the Record of Decision was approved by the Secretary of the Interior, it is not subject to administrative appeal (43 CFR 4.410(a)(3)).
40 CFR 1506.6 and 1506.10.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) and Kern County, California, have prepared a Draft Environmental Impact Statement (EIS)/Environmental Impact Report (EIR) and a Draft California Desert Conservation Area (CDCA) Plan Amendment (PA) for the Alta East Wind Project (AEWP), and by this notice the BLM is announcing the opening of the comment period.
To ensure that comments will be considered, the BLM must receive written comments on the Draft EIS/EIR/PA within 90 days following the date the Environmental Protection Agency publishes its Notice of Availability in the
You may submit comments related to the AEWP by any of the following methods:
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Copies of the Draft EIS/EIR/PA are available in the California Desert District Office at the above address, in the BLM Ridgecrest Field Office, 300 S. Richmond Road, Ridgecrest, California 93555, and on the BLM Web site:
For further information and/or to have your name added to our mailing list, contact Jeffery Childers, telephone 951 697-5308; address BLM California Desert District Office, 22835 Calle San Juan de Los Lagos, Moreno Valley, California 92553-9046; email
Alta Windpower Development, LLC (AWD) has requested a right-of-way (ROW) authorization to construct, operate, maintain, and decommission the AEWP. The Project would be located on about 3,200 acres on the north and south sides of State Route 58 in southeastern Kern County, California. The project area is approximately 3 miles northwest of the town of Mojave and approximately 11 miles east of the city of Tehachapi. The proposed project would include up to 106 wind turbines, access roads, energy collection lines, and ancillary facilities on 3,200 acres, of which 2,083 acres are on public land under the jurisdiction of the BLM and 1,117 acres are on private land under the jurisdiction of Kern County. The Project could produce up to 318 Megawatts (mW).
The BLM's purpose and need for the AEWP is to respond to AWD's application for a ROW grant to construct, operate, maintain, and decommission a wind energy facility on public lands in compliance with FLPMA, BLM ROW regulations, and other applicable Federal laws. The BLM will decide whether to grant, grant with modification, or deny a ROW to AWD for the proposed AEWP. The BLM is also proposing to amend the CDCA Plan by designating the project area as either available or unavailable for wind energy projects. The CDCA Plan (1980, as amended), while recognizing the potential compatibility of wind energy generation facilities with other uses on public lands, requires that all sites proposed for power generation or transmission not already identified in the Plan be considered through the plan amendment process. If the BLM decides to grant a ROW for this project, the CDCA Plan would be amended as required.
In addition to the proposed action and a no action alternative, the BLM is analyzing a reconfigured site layout alternative with up to 106 turbines, an alternative that would allow up to 97 turbines, and an alternative that would allow up to 87 turbines. The Draft EIS/EIR/PA also analyzes two no-project alternatives that would deny a ROW for the project but amend the CDCA Plan to find the project area either (1) available for future wind energy generation projects; or (2) unavailable for future wind energy generation projects.
The Draft EIS/EIR/PA evaluates the potential impacts of the proposed AEWP on air quality and greenhouse gas emissions, biological resources including Golden Eagles and California Condors, special status species, cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use, noise, recreation, traffic, visual resources, wilderness characteristics, cumulative effects, and areas with high potential for renewable energy development.
A Notice of Intent to Prepare an EIS/EIR/PA for the AEWP was published in the
Please note that public comments and information submitted including names, street addresses, and email addresses of persons who submit comments will be available for public review at the above address during regular business hours (8:00 a.m. to 4:00 p.m.), Monday through Friday, except holidays.
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.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Front Range Resource Advisory Council (RAC), will meet as indicated below.
The meeting will be held on August 8, 2012, from 9:30 p.m. to 4:30 p.m.
Bank of the West, 146 G. Street, Salida, Colorado 81201.
Denise Adamic, Front Range RAC Coordinator, BLM Royal Gorge Field Office, 3028 E. Main St., Cañon City, CO 81212. Phone: (719) 269-8553. Email:
The 15-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in the BLM Front Range District, which includes the Royal Gorge Field Office (RGFO) and the San Luis Valley Field Office. Planned topics of discussion items include: Field Manager updates as well as recreation and resource management issues at the Cache Creek Placer Mining Area. There will be an afternoon field trip to Cache Creek. The public is encouraged to make oral comments to the Council at 9:45 a.m. or written statements may be submitted for the Council's consideration. Summary minutes for the RAC meetings will be maintained in the RGFO and will be available for public inspection and reproduction during regular business hours within thirty (30) days following the meeting. Previous meeting minutes and agendas are available at:
National Park Service, Interior.
Notice of Availability of the Draft Supplemental Environmental Impact Statement for the Winter Use Plan, Yellowstone National Park.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service (NPS) announces the availability of a Draft Supplemental Environmental Impact Statement (Draft SEIS) for a Winter Use Plan for Yellowstone National Park, located in Idaho, Montana and Wyoming.
The National Park Service will accept comments from the public for 45 days from the date the Environmental Protection Agency publishes its Notice of Availability. The NPS intends to hold public meetings in Jackson, WY on July 16, 2012; West Yellowstone, MT on July 17, 2012; Bozeman, MT on July 18, 2012; and Cody, WY on July 19, 2012. Additional details regarding the public meeting locations and times can be found at
More information regarding Yellowstone in the winter, including educational materials and a detailed history of winter use in Yellowstone, is available at
Information will be available for public review and comment online at
Wade Vagias, P.O. Box 168, Yellowstone National Park, WY 82190, (307) 344-2035.
Four alternatives are considered in the Draft SEIS. Alternative 1, the no-action alternative, would not permit public over-snow vehicle (OSV) use in Yellowstone but would allow for approved non-motorized use to continue. Alternative 1 has been identified as the environmentally preferable alternative. Alternative 2
Alternative 4 is the NPS preferred alternative. This alternative would manage OSV use by transportation events. A total of 110 transportation events would be allowed in the park each day. A transportation event would initially equal one snowcoach or one group of snowmobiles (average of 7 snowmobiles per group, averaged over the winter use season; groups could not exceed a maximum of 10 snowmobiles). Operators would decide whether to use their daily allocation of transportation events for snowmobiles or snowcoaches, but no more than 50 daily transportation events could come from snowmobiles. OSV use would continue to be 100 percent guided, with four transportation events per day (one per gate) of up to 5 snowmobiles each allocated for non-commercially guided access. BAT requirements for snowmobiles would remain the same as the BAT requirements in the 2011/2012 interim regulation until the 2017/2018 winter season, at which time additional sound and air emission requirements would be implemented. BAT requirements for snowcoaches would also be implemented beginning in the 2017/2018 season. If OSVs meet additional established standards for air and sound emissions beyond those required for BAT, the group size of snowmobiles would be allowed to increase from an average of 7 to an average of 8 per transportation event, and snowcoaches would be allowed to increase from one to two snowcoaches per transportation event. These changes would allow for an increase in visitation while reducing transportation-generated noise and air impacts. Sylvan Pass would remain open.
If you wish to comment on the Draft Supplemental Environmental Impact Statement, you may submit your comments by any one of several methods. We encourage you to comment via the Internet at
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.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of a full review pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) (the Act) to determine whether revocation of the antidumping duty order on clad steel plate from Japan would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Angela M.W. Newell (202-708-5409), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's (“ALJ”) final initial determination (“ID”) issued on April 24, 2012, finding a violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337 in the above-captioned investigation.
Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2301. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on November 8, 2010, based on a complaint filed by Motorola Mobility, Inc. of Libertyville, Illinois. 75 FR 68619-20 (Nov. 8, 2010). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain wireless communication devices, portable music and data processing devices, computers and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 6,272,333 (“the `333 patent”); 6,246,862 (“the `862 patent”); 6,246,697 (“the `697 patent”); 5,359,317 (“the `317 patent”); 5,636,223 (“the `223 patent”); and 7,751,826 (“the `826 patent”). The complaint further alleges the existence of a domestic industry. The Commission's notice of investigation named Apple Inc. of Cupertino, California as respondent. The Office of Unfair Import Investigation (“OUII”) was named as a participating party, however, on July 29, 2011, OUII withdrew from further participation in the investigation.
On April 24, 2012, the ALJ issued his final ID, finding a violation of section 337 as to the `697 patent and finding no violation as to the `223, `333, and `697 patents. On May 9, 2012, the ALJ issued his recommended determination on remedy and bonding. In his final ID, the ALJ found that the products accused of infringing the `697 patent literally infringe claims 1-4 of that patent, and that Apple induces others to infringe the asserted claims of the `697 patent. The ALJ also found that the asserted claims of the `697 patent are not invalid as anticipated under 35 U.S.C. 102, as obvious under 35 U.S.C. 103, or for failure to satisfy the written description requirement or the best mode requirement of 35 U.S.C. 112. The ALJ also found that the `697 patent is not unenforceable for unclean hands. The ALJ further found that Motorola has satisfied the domestic industry requirement for the `697 patent. The ALJ also found that the products accused of infringing the `223 patent literally infringe the asserted claim of that patent and that Apple induces others to infringe the claim 1 of the `223 patent. The ALJ further found, however, that the asserted claim of the `223 patent is invalid as anticipated under 35 U.S.C. 102. The ALJ also found that Motorola has satisfied the domestic industry requirement for the `223 patent. The ALJ further found that the products accused of infringing the `333 patent do not literally infringe claim 12 of that patent. The ALJ also found that the asserted claim of the `333 patent is not invalid as anticipated under 35 U.S.C. 102 or for obviousness under 35 U.S.C. 103. The ALJ further found that Motorola has not satisfied the domestic industry requirement for the `333 patent. The ALJ also found that that claim 1 of the `862 patent is invalid as indefinite under 35 U.S.C. 112, ¶ 2 and, therefore, that the products accused of infringing the `862 patent do not literally infringe the asserted claim of that patent and that Motorola has not satisfied the domestic industry requirement for the `862 patent.
On May 7, 2012, Motorola filed a joint petition for review and contingent petition for review of certain aspects of the final ID's findings concerning claim construction, infringement, validity, and domestic industry. Also on May 7, 2012, Apple filed a joint petition for review and contingent petition for review of certain aspects of the final ID's findings concerning claim construction, infringement, validity, and patent unenforceability. On May 15, 2012, Motorola filed a response to Apple's petition. Also on May 15, 2012, Apple filed a response to Motorola's petition.
On June 6, 2012, Apple filed a post-RD statement on the public interest pursuant to Commission Rule 201.50(a)(4). Also on June 6, 2012, several non-parties filed public interest statements in response to the post-RD Commission Notice issued on May 15, 2012.
Having examined the record of this investigation, including the ALJ's final ID, the petitions for review, and the responses thereto, the Commission has determined to review the final ID in part. Specifically, with respect to the `223 patent the Commission has determined to review the ID's claim construction of the claim limitation “access priority value” in claim 1. The Commission has also determined to review the ID with respect to the validity of claim 1 of the `223 patent under 35 U.S.C. 102 in light of U.S. Patent No. 5,453,987 to Tran (“Tran `987) and U.S. Patent No. 5,657,317 to Mahany et al (“Mahany `317”) and under 35 U.S.C. 103 in light of Tran `987 in combination with Mahany `317. The Commission has further determined to review the ID's finding that the 802.11 standard necessarily practices claim 1 of the `223 patent, and thus, the ID's findings concerning infringement and whether Motorola has satisfied the technical prong of the domestic industry requirement with respect to the `223 patent.
With respect to the `697 patent, the Commission has determined to review the ID's construction of the limitation “selecting a chip time in a complex PN [pseudonoise] sequence generator” in claim 1. The Commission has also determined to review the ID's construction of the claim limitation “restricting a phase difference between a previous complex PN chip and a next complex PN chip to a preselected phase angle.” The Commission has further determined to review the ID's findings with respect to the validity of claims 1-4 the `697 patent under 35 U.S.C. 102 in light of prior art π/2-shift BPSK modulation and under 35 U.S.C. 103 in light of the combination of prior art QPSK and π/2-shift BPSK modulation schemes. The Commission has also determined to review the ID's finding of direct and induced infringement with respect to the `697 patent. The Commission has further determined to review the ID's finding that Motorola has satisfied the technical prong of the domestic industry requirement for the `697 patent.
With respect to the `862 patent, the Commission has determined to review the ID's construction of the limitation “close proximity to a user” in claim 1 and his finding that claim 1 is indefinite.
With respect to the `333 patent, the Commission has determined to review the ID's construction of the limitation “a list of all software applications that are currently accessible to the subscriber unit” in claim 12. The Commission has further determined to review the ALJ's finding that claim 12 is not invalid under 35 U.S.C. 102 in light of U.S. Patent Nos. 5,502,831 to Grube et al. (“Grube `831”), 6,008,737 to DeLuca et al. (“DeLuca `797”), or 5,612,682 to DeLuca et al. (“DeLuca `682”), or under 35 U.S.C. 103 in view of Grube `831 combined with DeLuca `682 and DeLuca `737. The Commission has also determined to review the ALJ's finding of non-infringement of claim 12. The Commission has further determined to review the ID's finding that Motorola's domestic industry product does not practice claim 12 of the `333 patent.
With respect to whether Motorola has satisfied the economic prong of the domestic industry requirement, the Commission has determined to review the ID's finding that Motorola has not satisfied the economic prong as to the `333 patent under section 337(a)(3)(C) for its investments in licensing. The Commission has also determined to review in part the ID's finding that Motorola has satisfied the economic prong with respect to the `223 and `697 patents under section 337(a)(3)(A) and (B).
The Commission has determined not to review the remaining issues decided in the ID.
The parties are requested to brief their positions on the issues under review with reference to the applicable law and the evidentiary record. In connection with its review, the Commission is particularly interested in responses to the following questions:
1. Does the description of the present invention in the specification of the `697 patent (
2. If claim 4 of the `697 patent is not invalid under 35 U.S.C. 112, ¶ 4, can a claim differentiation argument be made with respect to claims 1 and 4 that would resolve the appropriate scope of claim 1, considering the description of the present invention in the specification of the `697 patent?
3. With respect to the `333 patent, does the limitation “currently available” in claim 12 require that a non-web based software application need only be installed on a subscriber unit or does the software application have to be both installed and enabled for use? In discussing this issue, please refer to the ALJ's finding that the `333 Accused Products do not communicate with Apple's servers regarding changes in user credentials (
4. With regard to the `697 and `223 patents, are there substantial costs and delays associated with switching away from the standardized technology in question?
5. With regard to the `697 and `223 patents, do the patents in question cover relatively minor components of the accused products?
6. Has Apple waived its right to assert that Motorola failed to offer a license on reasonable and non-discriminatory (“RAND”) terms? In discussing this issue, please refer to Commission Investigative Staff Motion in Limine to Exclude The Expert Opinion of Jerry Hausman filed July 14, 2011, and to Respondent Apple Inc.'s Opposition to Commission Investigative Staff's Motion In Limine to Exclude the Expert Opinion of Robert O'Hara at page 1, n. 1 filed July 22, 2011.
7. If the record of an investigation lacks evidence sufficient to support a RAND-based affirmative defense (
8. Does the mere existence of a RAND obligation preclude issuance of an exclusion order? Please discuss theories in law, equity, and the public interest, and identify which (if any) of the 337(d)(1) public interest factors allegedly precludes issuance of such an order.
9. Should a patent owner that has refused to offer a license to a named respondent in a Commission investigation on a RAND obligated patent be able to obtain an exclusion order? Please discuss theories in law, equity, and the public interest, and identify which (if any) of the 337(d)(1) public interest factors allegedly precludes issuance of such an order.
10. Should a patent owner that has refused to offer a license on a RAND obligated patent to some entity (regardless of whether that entity is a named respondent in a Commission investigation) be able to obtain an exclusion order? Please discuss theories in law, equity, and the public interest, and identify which (if any) of the 337(d)(1) public interest factors allegedly precludes issuance of such an order.
11. Should a patent owner that has refused to negotiate a license on RAND terms with a named respondent in a Commission investigation be precluded from obtaining an exclusion order? Please discuss theories in law, equity, and the public interest, and identify which (if any) of the 337(d)(1) public interest factors allegedly precludes issuance of such an order.
12. Should a patent owner that has refused to negotiate a license on RAND terms with some entity (regardless of whether that entity is a named respondent in a Commission investigation) be precluded from obtaining an exclusion order? Please discuss theories in law, equity, and the public interest, and identify which (if any) of the 337(d)(1) public interest factors allegedly precludes issuance of such an order.
13. Should a patent owner who has offered a RAND license that the named respondent in a Commission investigation has rejected be precluded from obtaining an exclusion order? Please discuss theories in law, equity, and the public interest, and identify which (if any) of the 337(d)(1) public interest factors allegedly precludes issuance of such an order.
The parties have been invited to brief only these discrete issues, as enumerated above, with reference to the applicable law and evidentiary record. The parties are not to brief other issues on review, which are adequately presented in the parties' existing filings.
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background,
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 C.F.R. 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337-TA-754”) in a prominent place on the cover page and/or the first page. (
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.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42-46 and 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-46 and 210.50).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on May 23, 2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of FlashPoint Technology, Inc. of Peterborough, New Hampshire. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic imaging devices by reason of infringement of certain claims of U.S. Patent No. 6,400,471 (“the '471 patent”); U.S. Patent No. 6,222,538 (“the '538 patent”); U.S. Patent No. 6,504,575 (“the '575 patent”); and U.S. Patent No. 6,223,190 (“the '190 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Office of the Secretary, Docket Services Division, U.S. International Trade Commission, telephone (202) 205-1802.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2012).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain electronic imaging devices that infringe one or more of claims 1-5, 7, 8, 10, 22, 24, 26, 28, 31, 34-43, 60, and 62-69 of the '471 patent; claims 1, 17, 19, and 21-23 of the '538 patent; claims 1, 8, 17, 18, 20-22, 26, and 28 of the '575 patent, and claims 13, 14, 16, 20-29, 31-33, 36-39, 42, 43, 46-49, and 52-56 of the '190 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: FlashPoint Technology, Inc., 20 Depot Street, Suite 2A, Peterborough, NH 03458.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission,
The Office of Unfair Import Investigations will not participate as a party in this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Notice is hereby given that on June 25, 2012, a proposed Second Amendment to the consent decree in
On March 18, 2010, the United States District Court for the Southern District of Illinois entered a consent decree (“decree”) resolving claims of the United States and twelve states or state agencies against Lafarge North America, Inc., Lafarge Midwest, Inc., and Lafarge Building Materials, Inc. (“Lafarge”) for alleged violations of the Clean Air Act (“CAA” or “Act”) at its thirteen portland cement production facilities in the United States. Specifically, the consent decree resolved alleged violations of the Act's Prevention of Significant Deterioration (“PSD”) provisions, 42 U.S.C. 7470-92; Nonattainment New Source Review (“NNSR”) provisions, 42 U.S.C. 7501-15; the federally approved and enforceable state implementation plans (“SIPs”) which incorporate and/or implement the above-listed federal PSD and/or NNSR requirements; and the CAA Title V operating permit requirements, 42 U.S.C. 7661-61f, including Title V's implementing federal and state regulations.
The proposed Second Amendment affects only three of the thirteen cement plants addressed in the Consent Decree: the Roberta, Alabama; Harleyville, South Carolina; and Atlanta, Georgia cement plants. The Amendment substitutes Argos USA Corp. and Argos Cement LLC (collectively, “Argos”) for Lafarge with respect to those facilities following their sale by Lafarge to Argos on October 3, 2011. Argos has agreed to undertake the Consent Decree obligations applicable to those facilities, to be substituted for Lafarge with respect to those facilities and has demonstrated that it has the financial and technical ability to assume the Decree's obligations at those facilities. The proposed Second Amendment also amends the Consent Decree to terminate Consent Decree requirements applicable to the Atlanta facility because all Decree obligations at that plant have been met and no further obligations apply to that facility under the Decree.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Second Amendment. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the proposed Second Amendment to the consent decree may be examined on the following Department of Justice Web site,
Notice is hereby given that, on May 24, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, East European Authoring and Encoding Centre Ltd., Sofia, Bulgaria; Hansong (Nanjing) Electronics Ltd., Nanjing, People's Republic of China; Primare Systems, Växjö, Sweden; Rohm Co., Ltd., Ukyo-ku, Kyoto, Japan; and Seripress SAS, Bulgnevile, France, have withdrawn as parties to this venture.
In addition, SM Summit Holdings Limited has changed its name to Centurion Corporation Limited, Singapore, Singapore; and Ultra Source Technology Corp. has changed its name to Ultra Source Trading Hong Kong Limited, Shatin N.T., Hong Kong-China.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and DVD CCA intends to file additional written
On April 11, 2001, DVD CCA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 24, 2012. A notice was published in the
Notice is hereby given that, on June 4, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
The following parties have withdrawn from the venture: Access Co. Ltd., Tokyo, JAPAN; France Telecom S.A. (Orange Personal Communications Services Limited, Moulineaux, FRANCE; Adobe, San Jose, CA; ARM Holdings, PLC, Cambridge, UNITED KINGDOM; ETRI Embedded SW Division, Daejon, REPUBLIC OF KOREA; Gemalto, N.V., Amsterdam, NETHERLANDS; Huawei Communication Technologies Co. Ltd., Shenzhen, PEOPLE'S REPUBLIC OF CHINA; Incross Co. Ltd., Seoul, REPUBLIC OF KOREA; Marvell International Ltd., Hamilton, BERMUDA; McAfee Inc., Santa Clara, CA; NTT DATA MSE, Yokohama, JAPAN; Renesas Mobile Corporation, Tokyo, JAPAN; Verizon Communications, Inc., Basking Ridge, NJ, and Wind River Systems, Alameda, CA.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Tizen intends to file additional written notifications disclosing all changes in membership.
On March 1, 2007, Tizen (Formerly LiMo Foundation) filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on July 19, 2011. A notice was published in the
Notice is hereby given that, on June 4, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and 3D PDF intends to file additional written notifications disclosing all changes in membership.
On March 27, 2012, 3D PDF filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on May 30, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the name and principal place of business of the Delaware non-stock, non-profit standards development organization is Bluetooth SIG, Inc., Kirkland, WA. The nature and scope of Bluetooth SIG, Inc.'s standards development activities are to develop Bluetooth® wireless specifications and profiles. Additional information concerning Bluetooth SIG, Inc. may be obtained from Christine Scott, Bluetooth SIG, Inc.'s Director of Operations.
Notice.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, “Regulations Governing Longshore and Harbor Workers' Compensation Act Administration,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Submit comments on or before July 30, 2012.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 (these are not toll-free numbers), email:
Contact Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by email at
44 U.S.C. 3507(a)(1)(D).
The OWCP administers the Longshore and Harbor Workers' Compensation Act (LHWCA). The LHWCA provides benefits to workers injured in maritime employment on the navigable waters of the U.S. or in an adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel. In addition, several acts extend Longshore Act coverage to certain other employees. Regulations sections 20 CFR 702.111, -.162, -.174, -.175, -.201, -.202, -.242, -.285, -.285, -.310, and -.321 and Forms LS-200, LS-201, LS-203, LS-204, LS-262, LS-267, LS-271, LS-274, and LS-513 cover the submission of information relating to the processing of claims for benefits under the Longshore Act and extensions. This ICR has been characterized as a revision under the PRA for technical reasons. The agency has reformatted elements of the forms (e.g., replaced an obsolete logo with the DOL Seal and removed references to the no longer existent Employment Standards Administration). Those changes should not affect respondent information collection burden.
These information collections are subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send timely comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Notice.
On June 29, 2012, the Department of Labor (DOL) will submit the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Marine Terminals and Longshoring Standards” to the Office of Management and Budget (OMB) for review and approval for continued use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.).
Submit comments on or before July 30, 2012.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 (these are not toll-free numbers), email:
44 U.S.C. 3507(a)(1)(D).
Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by email at
The Marine Terminals and Longshoring Standards information collection requirements are related to the testing, certification, and marking of specific types of cargo lifting appliances and associated cargo handling gear and other cargo handling equipment such as conveyors and industrial trucks. The information the OSHA requires from employers are necessary to reduce worker injuries and fatalities associated with cargo lifting gear, transfer of vehicular cargo, manual cargo handling, and exposure to hazardous atmospheres.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB Control Number.
Interested parties are encouraged to send timely comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Office of Disability Employment Policy, Department of Labor.
The U.S. Department of Labor (DOL or Department), Office of Disability Employment Policy (ODEP) announces the availability of approximately $2.5 million to fund a cooperative agreement to manage and operate its Job Accommodation Network (JAN), a national technical assistance center that facilitates the employment and retention of workers with disabilities. Created in 1983, JAN is the most comprehensive job accommodation resource available. It is the leading source of free, expert, and confidential one-on-one guidance on workplace accommodations, the Americans with Disabilities Amendment Act of 2008 (ADAA) and related legislation, and self-employment and entrepreneurship options for people with disabilities. JAN provides technical assistance via phone, email and chat, and maintains a Web site containing online resources and publications. Technical assistance regarding individualized job accommodations and workplace strategies for job applicants and employees with disabilities is provided to private and federal sector employers, people with disabilities including disabled veterans, employment service providers, educational institutions and others. JAN develops and conducts trainings both in person and electronically (web-based and telephonic); works in collaboration with businesses, professional organizations, federal agencies and others on effective practices and other issues related to accommodations in the workplace; and engages in outreach to the public about its services. JAN establishes and maintains effective working relationships and collaborations with outside entities with the goal of sharing knowledge and promoting the adoption and implementation of ODEP policies and effective practices. JAN also conducts research and collects and analyzes data related to the cost and effectiveness of workplace accommodations and provides data that contribute to ODEP's annual performance measures and the development of its policies.
Funding of $2.5 million will be awarded through a competitive process for a 12-month period of performance, with the possibility of up to four option years of funding depending on the availability of funds and satisfactory performance.
This solicitation provides background information, describes the application submission requirements, outlines the process that eligible entities must use to apply for funds covered by this solicitation, and outlines the evaluation
The full Solicitation for Grant Applications is posted on
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. NSF has published regulations under the Antarctic Conservation Act. 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 July 30, 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:
1.
Enter Antarctic Specially Protected Areas. The applicant is a member of the Artists and Writers Program and plans to enter Caughley Beach, Cape Bird (ASPA 116), Cape Royds (ASPA 121), and Cape Crozier (ASPA 124) to photograph and record sounds of wildlife in Antarctica including Adelie and Emperor penguins. The recordings along with that of the wind and other aspects of the environment will allow the applicant to capture the essence of Antarctica through light, sound and movement. The resulting images and sounds will be included in the installation that will be created about Antarctica.
Caughley Beach, Cape Bird (ASPA 116), Cape Royds (ASPA 121), Cape Crozier (ASPA 124), and Cape Bird, Ross Island.
October 1, 2012 to January 31, 2013.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Office, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On May 24, 2012, the National Science Foundation published a notice in the
Jean Pennycook.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from Clinton Engineer Works in Oak Ridge, Tennessee, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On May 11, 2012, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Tennessee Eastman Corporation (1943-1947) and the Carbide and Carbon Chemicals Corporation (1947-1949) who were employed at the Clinton Engineer Works in Oak Ridge, Tennessee, from January 1, 1943 through December 31, 1949 for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more classes of employees included in the Special Exposure Cohort.
This designation became effective on June 10, 2012, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by email to
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Sandia National Laboratories in Albuquerque, New Mexico, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On May 11, 2012, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked in any area at Sandia National Laboratories in Albuquerque, New Mexico, from January 1, 1963 through December 31, 1994, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
This designation became effective on June 10, 2012, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by email to
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Electro Metallurgical site in Niagara Falls, New York, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On May 11, 2012, as provided for under 42 U.S.C. 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the Electro Metallurgical site in Niagara Falls, New York, from August 13, 1942 through December 31, 1947, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
This designation became effective on June 10, 2012, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by email to
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Brookhaven National Laboratory in Upton, New York, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On May 11, 2012, as provided for under 42 U.S.C. § 7384q(b), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the Brookhaven National Laboratory in Upton, New York, from January 1, 1980 through December 31, 1993, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for
This designation became effective on June 10, 2012, as provided for under 42 U.S.C. 7384
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by email to
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
CMS proposes to continue to use the Criteria Worksheets (Forms CMS-437A and CMS-437B) for verifying first-time exclusions from the IPPS, for complaint surveys, for its annual 5 percent validation sample, and for facility self-attestation. These forms are related to the survey and certification and Medicare approval of the IPPS-excluded rehabilitation units and rehabilitation hospitals.
For rehabilitation hospitals and rehabilitation units already excluded from the IPPS, annual onsite re-verification surveys by the SA are not required. These hospitals and units will be provided with a copy of the appropriate CMS-437 Worksheet at least 5-months prior to the beginning of its cost reporting period, so that the hospital/unit official may complete and sign an attestation statement and complete and return the appropriate CMS-437A or CMS-437B at least 5 months prior to the beginning of its cost reporting period. Fiscal Intermediaries will continue to verify, on an annual basis, compliance with the 60 percent rule (42 CFR 412.29(b)(2)) for rehabilitation hospitals and rehabilitation units through a sample of medical records and the SA will verify the medical director requirement.
The SA will maintain the documents unless instructed otherwise by the RO. The SA will notify the RO at least 60 days prior to the end of the rehabilitation hospital's/unit's cost reporting period of the IRF's compliance or non-compliance with the payment requirements. The information collected on these forms, along with other information submitted by the IRF is necessary for determining exclusion from the IPPS. Hospitals and units that have already been excluded need not reapply for exclusion. These facilities will automatically be reevaluated yearly to determine whether they continue to meet the exclusion criteria.
Both forms have been revised since the publication of the 60-day
2.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on July 30, 2012.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces that a public meeting of the Medicare Economic Index Technical Advisory Panel (“the Panel”). The purpose of the Panel is to review all aspects of the Medicare Economic Index (MEI). During this third and final meeting the Panel will discuss their findings and recommendations regarding the MEI's inputs, input weights, price-measurement proxies, and productivity adjustment. This meeting is open to the public in accordance with the Federal Advisory Committee Act.
John Poisal, Designated Federal Officer, Centers for Medicare & Medicaid Services, Office of the Actuary, Mail stop N3-02-02, 7500 Security Boulevard, Baltimore, MD 21244 or contact Mr. Poisal by phone at (410) 786-6397 or via email at
The Medicare Economic Index Technical Advisory Panel (“the Panel”) was established by the Secretary to conduct a technical review of the Medicare Economic Index (MEI). The review will include the inputs, input weights, price-measurement proxies, and productivity adjustment. For more information on the Panel, see the October 7, 2011
This notice announces the Wednesday, July 11, 2012 public meeting of the Panel. This meeting will focus on the Panel's findings and recommendations regarding the MEI's inputs, input weights, price-measurement proxies, and the productivity adjustment.
This meeting is open to the public. There will be up to 45 minutes allotted at this meeting for the Panel to hear oral presentations from the public. Time allotted for each presentation may be limited. If the number of registrants requesting to speak is greater than can be reasonably accommodated during the scheduled open public hearing session, we will conduct a lottery to determine the speakers for the scheduled open public hearing session. The contact person will notify interested persons regarding their request to speak by 5 p.m. EDT, Friday, July 6, 2012. Any presentations that are not selected based on the lottery will be forwarded to the panel for consideration. For this meeting, public comments should focus on the MEI's inputs, input weights, price-measurement proxies, and productivity adjustment. We require that you declare at the meeting whether you have any financial involvement with manufacturers (or their competitors) of any items or services being discussed.
The Panel will deliberate openly on the topics under consideration. Interested persons may observe the deliberations, but the Panel will not hear further comments during this time except at the request of the chairperson. The Panel will also allow up to 15 minutes for an unscheduled open public session for any attendee to address issues specific to the topics under consideration.
HCD International is coordinating meeting registration. While there is no registration fee, individuals must register to attend. You may register online at
This meeting will be held in a Federal government building; therefore, Federal security measures are applicable. We recommend that confirmed registrants arrive reasonably early, but no earlier than 45 minutes prior to the start of the meeting, to allow additional time to clear security. Security measures include the following:
• Presentation of government-issued photographic identification to the Federal Protective Service or Guard Service personnel.
• Inspection of vehicle's interior and exterior (this includes engine and trunk inspection) at the entrance to the grounds. Parking permits and instructions will be issued after the vehicle inspection.
• Inspection, via metal detector or other applicable means, of all persons entering the building. We note that all items brought into CMS, whether personal or for the purpose of presentation or to support a presentation, are subject to inspection. We cannot assume responsibility for coordinating the receipt, transfer, transport, storage, set-up, safety, or timely arrival of any personal belongings or items used for presentation or to support a presentation.
Individuals who are not registered in advance will not be permitted to enter the building and will be unable to attend the meeting. The public may not enter the building earlier than 45 minutes prior to the convening of the meeting. All visitors must be escorted in areas other than the lower and first floor levels in the Central Building.
5 U.S.C. App. 2, section 10(a).
Food and Drug Administration, HHS.
Notice; withdrawal.
The Food and Drug Administration (FDA) is announcing the withdrawal of the compliance policy guide (CPG) entitled “Sec. 230.110 Registration of Blood Banks, Other Firms Collecting, Manufacturing, Preparing, or Processing Human Blood or Blood Products (CPG 7134.01),” dated June 17, 1974.
The withdrawal is effective June 29, 2012.
Robert L. Hummel, Division of Compliance Policy (HFC-230), Food and Drug Administration, 12420 Parklawn Dr., ELEM-4152, Rockville, MD 20857, 301-796-4510.
FDA issued the CPG entitled “Sec. 230.110 Registration of Blood Banks, Other Firms Collecting, Manufacturing, Preparing, or Processing Human Blood or Blood Products (CPG 7134.01)” on June 17, 1974. We originally issued CPG 7134.01 entitled “Establishment Registration and Product Listing for Manufacturers of Human Blood and Blood Products,” to provide FDA's current thinking regarding the registration required by 21 CFR part 607 of blood banks and other establishments collecting, manufacturing, preparing, or processing human blood or blood products. Since the last update to CPG 7134.01 in 2000, the regulations for blood establishment registration under part 607 have been amended several times. FDA is withdrawing CPG 7134.01 because it is obsolete.
Health Resources and Services Administration, Department of Health and Human Services.
Notice.
This notice advises the public of the published lists of all geographic areas, population groups, and facilities designated as primary medical care, mental health, and dental health professional shortage areas (HPSAs) as of April 1, 2012, available on the Health Resources and Services Administration (HRSA) Web site at
Requests for further information on the HPSA designations listed on the HRSA Web site below and requests for additional designations, withdrawals, or reapplication for designation should be submitted to Andy Jordan, Office of Shortage Designation, Bureau of Health Professions, Health Resources and Services Administration, Room 9A-55, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857; (301) 594-0816.
Public or private nonprofit entities are eligible to apply for assignment of National Health Service Corps (NHSC) personnel to provide primary care, dental, or mental health services in these HPSAs. NHSC health
Individual requests for designation or withdrawal of a particular geographic area, population group, or a facility as a HPSA are received and reviewed continuously by BHPr. The majority of the requests come from the Primary Care Office (PCO) in the State Health Departments, who have access to the on-line application and review system. Requests that come from other sources are referred to the PCOs for their review and concurrence. In addition, applicants are expected to share copies of the requests with other interested parties, including the Governor, the State Primary Care Association and State professional associations for their comments and recommendations.
Annually, lists of designated HPSAs are made available to all PCOs, state medical and dental societies and others, with a request to review and update the data on which the designations are based. Emphasis is placed on updating those designations that are more than three years old or where significant changes relevant to the designation criteria have occurred.
Recommendations for possible additions, continuations, revisions or withdrawals from a HPSA list are reviewed by BHPr, and the review findings are provided by letter to the agency or individual requesting action or providing data, with copies to other interested organizations and individuals. These letters constitute the official notice of designation as a HPSA, rejection of recommendations for HPSA designation, revision of a HPSA designation, and/or advance notice of pending withdrawals from the HPSA list. Designations (or revisions of designations) are effective as of the date of the notification letter from BHPr. Proposed withdrawals become effective only after interested parties in the area affected have been afforded the opportunity to submit additional information to BHPr in support of its continued or revised designation. If no new data are submitted, or if BHPr review confirms the proposed withdrawal, the withdrawal becomes effective upon publication of the lists of designated HPSAs in the
In addition to the specific listings included in this notice, all Indian Tribes that meet the definition of such Tribes in the Indian Health Care Improvement Act of 1976, 25 U.S.C. 1603(d), are automatically designated as population groups with primary medical care and dental health professional shortages. The Health Care Safety Net Amendments of 2002 also made the following entities eligible for automatic facility HPSA designations: all federally qualified health centers (FQHCs) and rural health clinics that offer services regardless of ability to pay. These entities include: FQHCs funded under section 330 of the PHS Act, FQHC Look-Alikes, and Tribal and Urban Indian clinics operating under the Indian Self-Determination and Education Act of 1975 (25 U.S.C. 450) or the Indian Health Care Improvement Act. Many, but not all, of these entities are included on this listing. Exclusion from this list does not exclude them from the list of HPSAs; all will be included in the data base as they are identified.
Any designated HPSA listed on the HRSA Web site below is subject to withdrawal from designation if new information received and confirmed by HRSA indicates that the relevant data for the area involved have significantly changed since its designation. The effective date of such a withdrawal will be the next publication of a notice regarding this list in the
All requests for new designations, updates, or withdrawals should be based on the relevant criteria in regulations published at 42 CFR part 5.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institute of Nursing Research (NINR), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB).
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. Amanda Greene, Science Evaluation Officer, Office of Science Policy and Public Liaison, NINR, Democracy One, 6701 Democracy Blvd., Suite 700, Bethesda, MD 20892, or call non-toll-free number 301-496-9601, or email your request to
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institute of Child Health and Human Development (NICHD), the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
(a) PURPOSE.—It is the purpose of this section to authorize the National Institute of Child Health and Human Development* to conduct a national longitudinal study of environmental influences (including physical, chemical, biological, and psychosocial) on children's health and development.
(b) IN GENERAL.—The Director of the National Institute of Child Health and Human Development* shall establish a consortium of representatives from appropriate Federal agencies (including the Centers for Disease Control and Prevention, the Environmental Protection Agency) to—
(1) Plan, develop, and implement a prospective cohort study, from birth to adulthood, to evaluate the effects of both chronic and intermittent exposures on child health and human development; and
(2) Investigate basic mechanisms of developmental disorders and environmental factors, both risk and protective, that
(c) REQUIREMENT.—The study under subsection (b) shall—
(1) Incorporate behavioral, emotional, educational, and contextual consequences to enable a complete assessment of the physical, chemical, biological, and psychosocial environmental influences on children's well-being;
(2) Gather data on environmental influences and outcomes on diverse populations of children, which may include the consideration of prenatal exposures; and
(3) Consider health disparities among children, which may include the consideration of prenatal exposures.
To fulfill the requirements of the Children's Health Act, the Child Health Disparities Substudy will validate measures needed for studying health disparities and selected biomarkers. Utilizing cognitive interview techniques and components of standardized questionnaires, responses will be used to assess and validate measures of health literacy, discrimination, parenting self-efficacy, and health care accessibility. Acceptability and feasibility of saliva collection from a subsample of women and young children will also be evaluated. The incorporation of saliva measurements will increase understanding of biological responses to environmental factors and how these may be correlated with health disparities within this population.
To conduct the detailed preparation needed for a study of this size and complexity, the NCS was designed to include a preliminary pilot study known as the Vanguard Study. The purpose of the Vanguard Study is to assess the feasibility, acceptability, and cost of the recruitment strategy, study procedures, and outcome assessments that are to be used in the NCS Main Study. The Vanguard Study begins prior to the NCS Main Study and will run in parallel with the Main Study. At every phase of the NCS, the multiple methodological studies conducted during the Vanguard phase will inform the implementation and analysis plan for the Main Study.
In this information collection request, the NCS requests approval from OMB to perform a multi-center substudy called the Child Health Disparity Substudy. This substudy aims to validate measures needed for studying health disparities and selected biomarkers. Developing optimum measures for studying health disparities is of particular interest to the NCS because studies have shown that health literacy, discrimination, parenting self-efficacy, health care (access, utilization, and quality) contribute to health disparities. Additionally, aspects of the social environment such as social isolation, lack of control and contingency and social support, violence, discrimination, challenging and changing social relationships, and restricted access to health care are thought to interact with biological processes. Variation in these processes has been associated with negative emotional states, cognitive deficits, problem behavior, and a variety of metabolic and immune-related processes. Alone, or particularly in combination with other commonly collected measures of social forces and family relationships, salivary analytes have the potential to advance our understanding of maternal and child health and development. This project will make its contribution to the NCS Main Study and to the health disparities field as a whole by constructing a validated set of questionnaire measures and biomarker analyses that can be used among pregnant women and mothers of young children for the purpose of investigating disparities.
In compliance with the requirement of Section 3507(a)(1)(D) of the Paperwork Reduction Act (PRA) of 1995, the Office of the Director (OD), Office of Extramural Research (OER), the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comment.
The PHS 398 application is used by applicants to request federal assistance funds for traditional investigator-initiated research projects and to request access to databases and other PHS resources. The PHS 416-1 is used only for a change of sponsoring institution application. PHS Fellowship
The National Institutes of Health (NIH) is holding a conference titled “Consensus Development Conference: Diagnosing Gestational Diabetes Mellitus.” The conference will be open to the public.
The conference will be held October 29-31, 2012, in the NIH Natcher Conference Center, 45 Center Drive, Bethesda, Maryland 20892.
Advance information about the conference and conference registration materials may be obtained from the NIH Consensus Development Program Information Center by calling 888-644-2667 or by sending an email to
Gestational diabetes mellitus (GDM) is a condition in which women without previously diagnosed diabetes exhibit high blood glucose levels during pregnancy (especially during the third trimester of pregnancy). It is defined as carbohydrate intolerance, which is the inability of the body to adequately process carbohydrates (sugars and starches) into energy for the body that develops or is first recognized during pregnancy. GDM is estimated to occur in 1-14 percent of U.S. pregnancies, affecting more than 200,000 women annually. It is one of the most common disorders in pregnancy and is associated with an increased risk of complications for the mother and child. Potential complications during pregnancy and delivery include preeclampsia (high blood pressure and excess protein in the urine), caesarean delivery, macrosomia (large birth weight), shoulder dystocia (when a baby's shoulders become lodged during delivery), and birth injuries. For the neonate, complications include difficulty breathing at birth, hypoglycemia (low blood sugar), and jaundice. Up to one-half of women who have GDM during pregnancy will develop type 2 diabetes later in life.
Although the U.S. Preventive Services Task Force found in 2008 that the evidence was insufficient to assess the balance between the benefits and harms of screening women for GDM, the American College of Obstetricians and Gynecologists recommends universal screening for gestational diabetes using patient history, risk factors, or laboratory testing, such as with a glucose challenge test (GCT). Different approaches are used internationally for screening and diagnosis of GDM. The standard method in the United States begins with a GCT, which involves drinking a sweetened liquid containing 50 grams of sugar (glucose). A blood sample is taken after 1 hour, which measures the glucose level. If high, a diagnostic test is administered using a larger dose of glucose, and several blood tests are performed over 3 hours. Depending on the test used, and the chosen blood glucose levels that are used to diagnose GDM, the number of women who will receive the diagnosis will vary. Debate continues regarding the choice of tests and the effectiveness of treatment, especially in women with mild to moderate glucose intolerance. Potential harms of screening for GDM include anxiety for patients and the potentially adverse effects of a “high-risk” label in pregnancy. In addition, women diagnosed with GDM face stressors including dietary constraints, a need to add or increase exercise, frequent self-monitoring of blood glucose levels, and for some, self-administration of insulin which will require adjustments of insulin doses.
To better understand the benefits and risks of various GDM screening and diagnostic approaches, the NIH has engaged in a rigorous assessment of the available scientific evidence. This process is sponsored by the
1. What are the current screening and diagnostic approaches for gestational diabetes mellitus, what are the glycemic thresholds for each approach, and how were these thresholds chosen?
2. What are the effects of various gestational diabetes mellitus screening/diagnostic approaches for patients, providers, and U.S. health care systems?
3. In the absence of treatment, how do health outcomes of mothers who meet various criteria for gestational diabetes
4. Does treatment modify the health outcomes of mothers who meet various criteria for gestational diabetes mellitus and their offspring?
5. What are the harms of treating gestational diabetes mellitus, and do they vary by diagnostic approach?
6. Given all of the above, what diagnostic approach(es) for gestational diabetes mellitus should be recommended, if any?
7. What are the key research gaps in the diagnostic approach of gestational diabetes mellitus?
An evidence report on GDM will be prepared through the Agency for Healthcare Research and Quality's Evidence-based Practice Centers program, and a Consensus Development Conference will be held on October 29-31, 2012.
During the conference, invited experts, including the authors of the evidence report, will present scientific data. Attendees will have opportunities to ask questions and provide comments during open discussion periods. After weighing the evidence, an unbiased, independent panel will prepare and present a consensus statement addressing the key questions. The statement will be widely disseminated to practitioners, policymakers, patients, researchers, the general public, and the media.
As part of measures to ensure the safety of NIH employees and property, all visitors must be prepared to show a photo ID upon request. Visitors may be required to pass through a metal detector and have bags, backpacks, or purses inspected or x-rayed as they enter NIH buildings. For more information about the security measures at NIH, please visit the Web site at
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(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Scientific Management Review Board.
The NIH Reform Act of 2006 (Public Law 109-482) provides organizational authorities to HHS and NIH officials to: (1) Establish or abolish national research institutes; (2) reorganize the offices within the Office of the Director, NIH including adding, removing, or transferring the functions of such offices or establishing or terminating such offices; and (3) reorganize, divisions, centers, or other administrative units within an NIH national research institute or national center including adding, removing, or transferring the functions of such units, or establishing or terminating such units. The purpose of the Scientific Management Review Board (also referred to as SMRB or Board) is to advise appropriate HHS and NIH officials on the use of these organizational authorities and identify the reasons underlying the recommendations.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
This meeting is being published less than 15 days prior to the meeting due to scheduling conflicts of the Members.
The meeting will also be webcast. The draft meeting agenda and other information about SMRB, including information about access to the webcast, will be available at
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxis, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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 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 contract proposals, 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 National Institute of Mental Health Special Emphasis Panel, July 24, 2012, 11:00 a.m. to July 24, 2012, 4:00 p.m., National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD, 20852 which was published in the
The start time for this meeting has been changed to 1:00 p.m. 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 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 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 contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of a meeting of the Literature Selection Technical Review Committee.
The meeting will be open to the public as indicated below, with attendance limited to space available.
The portions of the meeting devoted to the review and evaluation of journals for potential indexing by the National Library of Medicine will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B), Title 5 U.S.C., as amended. Premature disclosure of the titles of the journals as potential titles to be indexed by the National Library of Medicine, the discussions, and the presence of individuals associated with these publications could significantly frustrate the review and evaluation of individual journals.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
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.
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.
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
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Division of Property Management, Program Support Center, HHS, room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses: AIR FORCE: Mr. Robert Moore, Air Force Real Property Agency, 143 Billy Mitchell Blvd., San Antonio, TX 78226, (210) 395-9512; GSA: Mr. Flavio Peres, General Services Administration, Office of Real Property Utilization and Disposal, 1800 F Street NW., Room 7040 Washington, DC 20405, (202) 501-0084;
NAVY: Mr. Steve Matteo, Department of the Navy, Asset Management Division, Naval Facilities Engineering Command, Washington Navy Yard, 1330 Patterson Ave. SW., Suite 1000, Washington, DC 20374; (202) 685-9426; (These are not toll-free numbers).
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of redelegation of authority to field offices.
On May 30, 2012, a new Consolidated Delegation of Authority was published in the
David H. Enzel, Director of Technical Assistance and Management, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7228, Washington, DC 20410-7000; telephone number 202-402-5557. This is not a toll-free number. For those needing assistance, this number may be accessed via TTY by calling the Federal Relay Service at 800-877-8339.
Published in the
Except those authorities specifically excluded, the Assistant Secretary redelegates to the Directors and Deputy Directors of Community Planning and Development in HUD Field Offices all powers and authorities of the Assistant Secretary necessary to carry out the following Community Planning and Development programs and matters:
1. Community Development Block Grants (CDBG), Section 108 Loan Guarantees, Neighborhood Stabilization Programs (NSP), CDBG Disaster Recovery Grants, and other programs covered by Title I of the Housing and Community Development Act of 1974, Public Law 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. 5301
a. Terminate, reduce, or limit the availability of grant payments pursuant to section 111(a), 42 U.S.C. 5311.
b. Adjust entitlement and state grants pursuant to section 104(e), 42 U.S.C. 5304.
c. Determine basic grant amounts for metropolitan cities, urban counties, and States pursuant to section 106, 42 U.S.C. 5306.
d. Reallocate funds pursuant to section 106(c) or (d), 42 U.S.C. 5306.
e. Determine the qualifications of localities for special consideration. This includes, but is not limited to, the determination of qualifications of counties as urban counties pursuant to section 102(a)(6), 42 U.S.C. 5302, the determination of what constitutes a city pursuant to section 102(a)(5), 42 U.S.C. 5302, and the determination of levels of physical and economic distress of cities and urban counties for eligibility for urban development action grants pursuant to section 119(b), 42 U.S.C. 5318.
f. Approve and disapprove applications, or amendments to applications, filed for loan guarantee or grant assistance, issue commitments or grant awards, execute grant agreements, or issue guarantees pursuant to section 108, 42 U.S.C. 5308.
2. Comprehensive Housing Affordability Strategies (CHAS), Title I of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified as amended at 42 U.S.C. 12701 et seq.); consolidated plans, 24 CFR part 91.
3. Emergency Shelter Grants/Emergency Solutions Grants program, Title IV, Subtitle B of the McKinney-Vento Homeless Assistance Act, Public Law 100-77, 101 Stat. 482 (1987) (codified as amended at 42 U.S.C. 11371
a. Determine allocation amounts.
b. Approve built-in waivers or exceptions authorized under Title IV of the McKinney-Vento Homeless Assistance Act and applicable implementing regulations (such as section 414(b), 42 U.S.C. 11374(b); 24 CFR 576.21(b)(2) and section 415(d), 42 U.S.C. 11375(d); 24 CFR 576.56(b); 24 CFR 576.57(d).
4. The HOME Investment Partnerships Act, Title II of the Cranston-Gonzalez National Affordable Housing Act (NAHA), Public Law 101-625, 104 Stat. 4094 (1990) (codified as amended at 42 U.S.C. 12721
a. Determine allocation and reallocation amounts pursuant to section 217 of NAHA.
b. Revoke a jurisdiction's designation as a participating jurisdiction pursuant to section 216 of NAHA.
c. Effect remedies for noncompliance pursuant to section 223 of NAHA.
d. Approve a change in the number of units designated as HOME-assisted units during the period of affordability pursuant to 24 CFR 92.205(d).
e. Make a determination that a consortium does not have sufficient authority and administrative capability to administer the HOME Program pursuant to 24 CFR 92.101(a)(3).
5. Housing Trust Fund (HTF), Section 1338 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, added by Section 1131 of Public Law 110-289, 122 Stat. 2654 (codified at 12 U.S.C. 4568).
a. Determine allocations, adjustments, and reallocation amounts.
6. Homelessness Prevention and Rapid Re-Housing Program (HPRP) as authorized under the Homelessness Prevention Fund heading of Division A, Title XII of the American Recovery and Reinvestment Act of 2009, Public Law 111-5, 123 Stat. 115.
7. AIDS Housing Opportunity Act, Title VIII, Subtitle D of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified as amended at 42 U.S.C. 12901-12912); 24 CFR part 574.
a. Determine allocations, adjustments, and reallocation amounts.
b. Revoke a jurisdiction's designation as an eligible state or eligible metropolitan statistical area for a formula allocation or as an eligible applicant for a nonformula allocation.
c. Suspend or terminate current awards in whole or in part, withhold further awards, and effect other legally available remedies pursuant to 24 CFR 85.43(a)(3), (4) and (5).
d. Approve built-in waivers pursuant to section 858, 42 U.S.C. 12907(b)(1)(B); 24 CFR 574.310(c)(2).
8. Title IV Subtitles C-F of the McKinney-Vento Homeless Assistance Act, Public Law 100-77, 101 Stat. 482 (1987) (codified as amended at 42 U.S.C. 11381 et seq.), renamed by Act of Oct. 30, 2000, Public Law 106-400, 114 Stat. 1675 (2000) including the following: Supportive Housing Program, 24 CFR part 583, Shelter Plus Care program, 24 CFR part 582, Moderate Rehabilitation for Single Room Occupancy program, 24 CFR part 882, Subpart H, Continuum of Care program, and Rural Housing Stability Assistance program.
a. Make funding decisions.
b. Approve built-in waivers or exceptions authorized under Title IV of the McKinney-Vento Homeless Assistance Act and applicable implementing regulations (such as section 426(g), 42 U.S.C. 11386(g); 24 CFR 583.300(f); section 455(c), 42 U.S.C. 11403d(c); 24 CFR 582.300(a); section 441(h), 42 U.S.C. 11401(h); 24 CFR 882.808(q); 24 CFR 582.340(b); 24 CFR 583.330(e)).
9. Economic Development Initiative grants, as provided for in annual HUD appropriations acts (e.g., Consolidated Appropriations Resolution, Fiscal Year 2003, Public Law 108-7, 117 Stat. 11 (2003)).
10. Neighborhood Initiatives grants specifically designated in annual HUD appropriations acts (e.g., Consolidated Appropriations Act 2010, Public Law 111-117, 123 Stat. 3034 (2009)).
11. Rural Innovation Fund grants as provided for in annual HUD appropriations act(s) (e.g., Consolidated Appropriations Act 2010, Public Law 111-117, 123 Stat. 3084 (2009)).
12. The urban Empowerment Zones (EZ), as authorized under title 26, subtitle A, chapter 1, subchapter U of the Internal Revenue Code (codified as amended at 26 U.S.C. 1391
a. Approve or amend strategic plans or other state and local commitments, including boundary changes.
b. Revoke a designation, including issuing a warning letter pursuant to 24 CFR parts 597 and 598.
13. Overall Departmental responsibility for compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, 84 Stat. 1894 (1971) (codified as amended at 42 U.S.C. 4601 et seq.); 49 CFR part 24.
a. Exercise the Federal Agency waiver authority provided under 49 CFR 24.7.
14. Technical Assistance and Capacity Building awards authorized under any program or matter delegated under Section A (e.g., section 107 of the Housing and Community Development Act of 1987, Pub. L. No 100-242, 101 Stat. 1815 (1988)) and as provided for in annual and supplemental HUD appropriations acts (e.g., Consolidated Appropriations Act 2010, Pub. L. 111-117, 123 Stat. 3093 (2009)).
15. Certain Community Planning and Development programs that are no longer authorized for funding (or future funding is not anticipated) but administration of the programs must continue until all Department responsibilities are discharged and finally terminated. These programs, as of June 2011, include the following:
a. Any program superseded by, or inactive by reason of, Title I of the Housing and Community Development Act of 1974, Pub.L. No. 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. 5316).
b. Grants for urban Empowerment Zones (EZ) as provided for in annual HUD appropriations acts (e.g., Consolidated Appropriations Resolution, Fiscal Year 2003, Pub. L. 108-7, 117 Stat. 11 (2003)).
c. HOPE for Homeownership of Single-family Housing Program (HOPE 3), Title IV, Subtitle C of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified at 42 U.S.C. 12891).
d. New Communities Program, Section 413 of the Housing and Urban Development Act of 1968, Public Law 90-448, 82 Stat. 476 (repealed 1983), Section 726 of the Housing and Urban Development Act of 1970, Public Law 91-609 (repealed 1983), 84 Stat. 1784, Section 474 of the Housing and Urban-Rural Recovery Act of 1983, Public Law 98-181, 97 Stat. 1237 (codified at 12 U.S.C. 1701g-5b), and any other functions, powers and duties which may affect the liquidation of the New Communities program.
e. Rural Housing and Economic Development grants specifically designated originally in the Fiscal Year 1998 HUD Appropriations Act, Public Law 105-65, 111 Stat. 1344 (1997), and subsequent annual HUD appropriations acts.
f. Renewal Communities (RC), as authorized under Title 26, Subtitle A, Chapter 1, Subchapter X of the Internal Revenue Code (codified as amended at 26 U.S.C. 1400E
g. All programs consolidated in the Revolving Fund (Liquidating Programs) established pursuant to Title II of the Independent Offices Appropriations Act, Public Law 98-45, 97 Stat. 223 (1983) (codified as amended at 12 U.S.C. 1701g-5)) including all authority of the Assistant Secretary with respect to the functions, administration and management of the Revolving Fund (Liquidating Programs). Only the Assistant Secretary is the responsible official for allotments in the Revolving Fund (Liquidating Programs).
h. Youthbuild Program, Title IV, Subtitle D of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (repealed 2006); 24 CFR part 585; and Youthbuild TA as authorized under Title IV of the Cranston-Gonzalez National Affordable Housing Act, as amended by the Housing and Community Development Act of 1992, Public Law 102-550, 106 Stat. 3723 (1992) (repealed 2006).
Subject to the excepted authority in Section C, the Assistant Secretary redelegates to Directors and Deputy Directors of CPD in HUD Field Offices the authority to order a limited denial of participation sanction pursuant to HUD regulations at 2 CFR part 2424, with respect to the programs and matters listed in Section A; provided that the General Counsel, or such other official as may be designated by the General Counsel, must: (1) Concur in any proposed sanction under 2 CFR part 2424 before it is issued, and (2) concur in any proposed settlement of a sanction under 2 CFR part 2424.
The authority redelegated under Section A does not include:
1. The authority to issue or waive regulations covered by section 7(q) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(q));
2. The authority to sue and be sued;
3. The authority to effect remedies for noncompliance requiring notice and an opportunity for an administrative hearing;
4. The authority for allotments in the Revolving Fund (Liquidating Programs) under paragraph g of Section A; or
5. Any authority not delegated to the Assistant Secretary for CPD under the Consolidated Delegation of Authority for Community Planning and Development.
The Assistant Secretary may revoke at any time this redelegation with respect to the programs and matters listed in Section A and orders of limited denial of participation issued in accordance with Section B.
The authority redelegated in Sections A and B may not be further redelegated.
This notice supersedes all prior redelegations of authority from the Assistant Secretary of CPD to Directors and Deputy Directors of Community Planning and Development in HUD Field Offices, including the redelegation of authority published on October 18, 2011 at 76 FR 64364.
The Assistant Secretary hereby ratifies all actions previously taken by the Directors and Deputy Directors of CPD in HUD Field Offices with respect to the programs and matters listed in Section A and orders of limited denial of participation issued in accordance with Section B.
Section 7(d), Department of Housing and Urban Development Act, 42 U.S.C. 3535(d).
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of redelegation of authority to Deputy Assistant Secretaries in Community Planning and Development.
On May 30, 2012, a new Consolidated Delegation of Authority was published in the
David H. Enzel, Director of Technical Assistance and Management, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7228, Washington, DC 20410-7000; telephone number 202 402-5557. This is not a toll-free number. For those needing assistance, this number may be accessed via TTY by calling the Federal Relay Service at 800-877-8339.
Published in the
Except those authorities specifically excluded, the Assistant Secretary redelegates to the Deputy Assistant Secretary for Grant Programs all powers and authorities of the Assistant Secretary necessary to carry out the following Community Planning and Development programs and matters:
a. Comprehensive Housing Affordability Strategies (CHAS), Title I of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified as amended at 42 U.S.C. 12701
b. The HOME Investment Partnerships Act, Title II of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified as amended at 42 U.S.C. 12721
c. Housing Trust Fund (HTF), Section 1338 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, added by Section 1131 of Public Law 110-289, 122 Stat. 2654 (codified at 12 U.S.C. 4568).
d. Tax Credit Assistance Program (TCAP) as authorized under the HOME Investments Partnership Program heading of Division A, Title XII of American Recovery and Reinvestment Act of 2009, Public Law 111-5, 123 Stat. 115, 220-21.
e. Self-Help Housing Opportunity Program (SHOP) under section 11 of the Housing Opportunity Program Extension Act of 1996, Public Law 104-120, 110 Stat. 834 (codified as amended at 42 U.S.C. 12805 note).
f. Title I of the Housing and Community Development Act of 1974, Public Law 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. 5301
(1) Community Development Block Grant (CDBG) program;
(2) Section 108 loan guarantee program;
(3) Economic development grants pursuant to Section 108(q);
(4) Neighborhood Stabilization Programs Under Housing and Economic Recovery Act of 2008, Public Law 110-289, 122 Stat. 2850; Title XII of Division A of the American Recovery and Reinvestment Act of 2009, Public Law 111-5, 123 Stat. 115; and Section 1497 of the Wall Street Reform and Consumer Protection Act of 2010, Public Law 111-203, 124 Stat. 1376 (codified as amended at 42 U.S.C. 5301 note);
(5) CDBG Disaster Recovery Grants as provided for in annual and supplemental HUD appropriations acts; and
(6) Appalachian Regional Commission grants pursuant to section 214 of the Appalachian Regional Development Act of 1965, Public Law 89-4, 79 Stat. 5 (codified as amended at 40 U.S.C. 14507) and consistent with the CDBG program authorized under Title I of the Housing and Community Development Act of 1974, Public Law 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. 5301
g. Overall Departmental responsibility for compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, 84 Stat. 1894 (1971) (codified as amended at 42 U.S.C. 4601
h. Environment, overall Departmental responsibility for compliance with the National Environmental Policy Act of 1969, Public Law 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. 4321-4347), and the related laws and authorities cited in 24 CFR 50.4.
i. Slum Clearance and Urban Renewal Program Under Title I of the Housing Act of 1949, Public Law 81-171, 63 Stat. 413 and any program that is superseded or inactive by, or inactive by reason of, Title I of the Housing and Community Development Act of 1974, Public Law 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. 5316).
j. Rental Rehabilitation Program, United States Housing Act of 1937 § 17, Public Law 98-181, 97 Stat. 1196 (repealed 1990); 24 CFR part 511.
k. Section 312 Rehabilitation Loan Program, Housing Act of 1964 § 312, Public Law 88-560, 78 Stat. 769; 24 CFR part 510.
l. HUD's Homeownership Zone Initiative (HOZ) grants as provided for in section 205 of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1997, Public Law 104-204, 110 Stat. 2874 (1996) and funded with recaptured Nehemiah grants authorized under Title VI of the Housing and Community Development Act of 1987, Pub. L. 100-242, 101 Stat. 1815 (1988) (codified at 12 U.S.C. 17151 note).
m. HOPE for Homeownership of Single-family Housing Program (HOPE 3), Title IV, Subtitle C of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified at 42 U.S.C. 12891).
n. New Communities Program, Section 413 of the Housing and Urban Development Act of 1968, Public Law 90-448, 82 Stat. 476 (repealed 1983), Section 726 of the Housing and Urban Development Act of 1970, Public Law 91-609 (repealed 1983), 84 Stat. 1784, Section 474 of the Housing and Urban-Rural Recovery Act of 1983, Public Law 98-181, 97 Stat. 1237 (codified at 12 U.S.C. 1701g-5b), and any other functions, powers and duties which may affect the liquidation of the New Communities program.
o. Technical assistance and capacity building awards authorized under any program or matter listed in Section A.1 and as provided for in annual and supplemental HUD appropriations acts (e.g., Consolidated Appropriations Act 2010, Pub. L. 111-117, 123 Stat. 3093 (2009)).
Further, in the absence of the Deputy Assistant Secretary for Grant Programs, the Assistant Secretary redelegates to the Director of the Office of Block Grant Assistance all powers and authorities of the Assistant Secretary necessary to carry out programs and matters listed in paragraphs f and i of Section A.1.
Further, in the absence of the Deputy Assistant Secretary for Grant Programs, the Assistant Secretary redelegates to the Director of the Office of Affordable Housing Programs all powers and authorities of the Assistant Secretary necessary to carry out programs and matters listed in paragraphs b, c, d, e, g, and l of Section A.1.
Except those authorities specifically excluded, the Assistant Secretary redelegates to the Deputy Assistant Secretary for Special Needs all powers and authorities of the Assistant Secretary necessary to carry out the following Community Planning and Development programs and matters:
a. Title IV of the McKinney-Vento Homeless Assistance Act, Public Law 100-77, 101 Stat. 482 (1987) (codified as amended at 42 U.S.C. 11301
b. Base Closure, Base Closure Community Redevelopment and Homeless Assistance Act of 1994, Public
c. Homelessness Prevention and Rapid Re-Housing Program (HPRP), as authorized under the Homelessness Prevention Fund heading of Division A, Title XII of the American Recovery and Reinvestment Act of 2009, Public Law 111-5, 123 Stat. 115.
d. Title V of the McKinney-Vento Homeless Assistance Act, Public Law 100-77, 101 Stat. 482 (1987) (codified as amended 42 U.S.C. 11411
e. Veterans Homelessness Prevention Demonstration Program, as provided for in annual HUD appropriations act(s) (e.g., Omnibus Appropriations Act, 2009, Public Law 111-8, 123 Stat. 524 (2009)).
f. AIDS Housing Opportunity Act, Title VIII, Subtitle D of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified as amended at 42 U.S.C. 12901-12912); 24 CFR part 574.
Further, in the absence of the Deputy Assistant Secretary for Special Needs, the Assistant Secretary redelegates to the Director of the Office of Special Needs Programs all powers and authorities of the Assistant Secretary necessary to carry out programs and matters listed in paragraphs a, b, c, d, and e of Section A.2. Further, the Assistant Secretary redelegates to the Director of the Community Assistance Division the authority to sign notices of available properties and subsequent letters regarding the properties under Title V of the McKinney-Vento Homeless Assistance Act (codified as amended 42 U.S.C. 11411
Further, in the absence of the Deputy Assistant Secretary for Special Needs, the Assistant Secretary redelegates to the Director of the Office of HIV/AIDS Housing all powers and authorities of the Assistant Secretary necessary to carry out programs and matters listed in paragraph f of Section A.2.
Except those authorities specifically excluded, the Assistant Secretary redelegates to the Deputy Assistant Secretary for Economic Development all powers and authorities of the Assistant Secretary necessary to carry out the following Community Planning and Development programs and matters:
a. Economic Development Initiative grants, as provided for in annual HUD appropriations acts (e.g., Consolidated Appropriations Resolution, Fiscal Year 2003, Pub. L. 108-7, 117 Stat. 11 (2003)).
b. Grants for urban Empowerment Zones (EZ) as provided for in annual HUD appropriations acts (e.g., Consolidated Appropriations Resolution, Fiscal Year 2003, Pub. L. 108-7, 117 Stat. 11 (2003)).
c. The Loan Guarantee Recovery Program under Section 4 of the Church Arson Prevention Act of 1996, Public Law 104-155, 110 Stat. 1392 (codified at 18 U.S.C. 241 note); 24 CFR part 573.
d. Neighborhood Initiatives grants specifically designated in annual HUD appropriations acts (e.g., Consolidated Appropriations Act 2010, Pub. L. 111-117, 123 Stat. 3034 (2009)).
e. Rural Innovation Fund grants as provided for in annual HUD appropriations act(s) (e.g., Consolidated Appropriations Act 2010, Pub. L. 111-117, 123 Stat. 3084 (2009)).
f. Rural Housing and Economic Development grants specifically designated originally in the Fiscal Year 1998 HUD Appropriations Act, Public Law 105-65, 111 Stat. 1344 1997, and subsequent annual HUD appropriations acts.
g. The Renewal Communities (RC) Initiative as authorized under title 26, subtitle A, chapter 1, subchapter X of the Internal Revenue Code, as amended, 26 U.S.C. 1400E
h. Urban Development Action Grants under Title I of the Housing and Community Development Act of 1974, Public Law 93-383, 88 Stat. 633 (codified as amended at 42 U.S.C. 5318).
i. The urban Empowerment Zones (EZ), as authorized under title 26, subtitle A, chapter 1, subchapter U of the Internal Revenue Code (codified as amended at 26 U.S.C. 1391
j. Youthbuild Program, Title IV, Subtitle D of the Cranston-Gonzalez National Affordable Housing Act, Public Law 101-625, 104 Stat. 4079 (1990) (codified at 42 U.S.C. 12899
Further, in the absence of the Deputy Assistant Secretary for Economic Development, the Assistant Secretary redelegates to the Director of the Congressional Grants Division all powers and authorities of the Assistant Secretary necessary to carry out programs and matters listed in Section A.3.
Except those authorities specifically excluded, the Assistant Secretary redelegates to the Deputy Assistant Secretary for Operations and the Director of Technical Assistance and Management all powers and authorities of the Assistant Secretary necessary to carry out the following Community Planning and Development programs and matters:
a. Technical Assistance and Capacity Building awards authorized under any program or matter delegated to the Assistant Secretary for Community Planning and Development (e.g., section 107 of the Housing and Community Development Act of 1987, as amended and Section 4 Capacity Building for Community Development and Affordable Housing Grants program as authorized by Section 4 of the HUD Demonstration Act of 1993 (Pub. L. 103-120, 107 Stat. 1148, 42 U.S.C. 9816 note), as amended, and as provided for in annual and supplemental HUD appropriations acts (e.g., Consolidated Appropriations Act 2010, Pub. L. 111-117, 123 Stat. 3093 (2009)).
b. All programs consolidated in the Revolving Fund (Liquidating Programs) established pursuant to Title II of the Independent Offices Appropriations Act, Public Law 98-45, 97 Stat. 223 (1983) (codified at 12 U.S.C. 1701g-5), including all authority of the Assistant Secretary with respect to functions, administration and management of the Revolving Fund (Liquidating Programs). Only the Assistant Secretary is the responsible official for allotments in the Revolving Fund (Liquidating Programs).
The authority redelegated under Section A does not include:
1. The authority to issue or waive regulations covered by section 7(q) of the Department of Housing and Urban Development Act;
2. The authority to exercise the Federal Agency waiver authority provided under 49 CFR 24.7;
3. The authority to enter regulations or directives into Departmental clearance; or
4. Any authority not delegated to the Assistant Secretary for Community Planning and Development under the Consolidated Delegation of Authority for Community Planning and Development.
The Assistant Secretary may revoke at any time this redelegation with respect to the programs and matters listed in Section A.
The authority redelegated in Section A may be further redelegated to employees of the Department.
This notice supersedes all prior redelegations of authority from the Assistant Secretary of Community Planning and Development to Deputy Assistant Secretaries and other specified HUD officials, including the redelegation of authority published on October 18, 2011 at 76 FR 64369.
The Assistant Secretary hereby ratifies all actions previously taken by the Deputy Assistant Secretaries of Community Planning Development and other specified HUD officials, with respect to the programs and matters listed in Section A.
Section 7(d), Department of Housing and Urban Development Act, 42 U.S.C. 3535(d).
Nuclear Regulatory Commission.
Draft regulatory guides; extension of comment period.
On May 17, 2012 (77 FR 29391), the U.S. Nuclear Regulatory Commission (NRC or the Commission) issued for public comment four (4) draft regulatory guides (DGs), DG-1285, “An Approach for Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis,” (proposed Revision 3 of Regulatory Guide [RG] 1.174); DG-1286, “An Approach for Plant-Specific, Risk-Informed Decisionmaking: Inservice Testing,” (proposed Revision 1 of RG 1.175); DG 1287, “An Approach for Plant-Specific, Risk-Informed Decisionmaking: Technical Specifications” (proposed Revision 2 of RG 1.177); and DG-1288, “An Approach for Plant-Specific Risk-Informed Decisionmaking for Inservice Inspection of Piping” (proposed Revision 2 of RG 1.178) in the
Submit comments by August 13, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may access information and comment submissions related to this document, which the NRC possesses and are publicly available, by searching on
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•
•
For additional directions on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Carol Moyer, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-251-7641 or email:
Please refer to Docket ID NRC-2012-0110 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and are publicly available, by any of the following methods:
•
•
•
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
Please include Docket ID NRC-2012-0110 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publically disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is issuing for public comment 4 draft regulatory guides in the NRC's “Regulatory Guide” series. This series was developed to describe
These 4 draft regulatory guides are temporarily identified by their task numbers, DG-1285, DG-1286, DG-1287, and DG-1288. The focus of the revisions to these RGs addresses the Commission's Staff Requirements Memorandum (SRM) (SECY-11-0014, issued 3-15-2011), titled “Use of Containment Accident Pressure in Analyzing Emergency Core Cooling System and Containment Heat Removal System Pump Performance in Postulated Accidents” directing the staff to revise the discussion on defense-in-depth. Specifically, the SRM stated,
Because the statements in Regulatory Guide 1.174 are subject to different interpretations, the staff should revise this guide using precise language to assure that the defense-in-depth philosophy is interpreted and implemented consistently. To the extent that other regulatory guidance refers to defense in depth, the relevant documents should be updated also, as appropriate.
In reviewing these RGs, it was observed that clarification could be added in several other places; for example:
• The use of the terms “PRA technical acceptability,” “PRA technical adequacy,” and “PRA quality” were not clear.
• References in the RGs, in places, have been either updated or are no longer in use.
Although the focus of this proposed revision is to revise the discussion on defense-in-depth, the NRC staff believes that the identified clarifications should be addressed. In DG-1285 (proposed Rev. 3 of RG 1.174) the terms on PRA technical acceptability, PRA technical adequacy, and PRA quality are revised to be consistent with RG 1.200, “An Approach for Determining the Technical Adequacy of Probabilistic Risk Assessment Results for Risk-Informed Activities” and the references were updated. It is the intent of the staff, following the public review and comment period, to review all four RGs and identify administrative changes that will improve the consistency, quality, and usability of each guide. Stakeholders and the public are requested to provide any input regarding areas in these DGs where clarification and improvements may be needed.
DG-1285, is proposed revision 3 of Regulatory Guide 1.174 dated May 2011, it provides guidance on an approach the NRC finds acceptable for analyzing issues associated with proposed changes to a plant's licensing basis and for assessing the impact of these changes on the risk associated with plant design and operation. One key element to this type of decisionmaking is an engineering analysis of the proposed change. As part of the engineering analysis, licensees evaluate the impact of the change on maintaining adequate defense-in-depth. This proposed revision incorporates additional language and specific examples of how maintaining defense-in-depth is achieved when licensees use risk-informed analysis of proposed changes to the plant's licensing basis.
On May 17, 2012 (77 FR 29391), the U.S. Nuclear Regulatory Commission (NRC or the Commission) issued for public comment four (4) DGs (DG-1285, DG-1286, DG-1287 and DG-1288). By letter dated June 4, 2012, the Nuclear Energy Institute (ADAMS Accession No. ML12174A174) requested an extension of the stated comment period for the purpose of providing sufficient review of the changes involving defense-in-depth evaluations. It is the desire of the NRC to receive comments of high quality from all stakeholders. Several factors have been considered in granting an extension. The requested comment period extension is reasonable and does not affect NRC deadlines. The additional time will allow for stakeholders to discuss the proposed guide during related meetings. Therefore, the comment submittal period is extended from the original date of June 29, 2012 to August 13, 2012.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is issuing for public comment draft regulatory guide (DG), DG-1280, “Design, Inspection, and Testing Criteria for Air Filtration and Adsorption Units of Normal Atmosphere Cleanup Systems in Light-Water-Cooled Nuclear Power Plants.” This guide describes a method for design, inspection, and testing of normal atmosphere cleanup systems for controlling releases of airborne radioactive materials to the environment during normal operations, including
Submit comments by August 27, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may access information and comment submissions related to this document, which the NRC possesses and are publically available, by searching on
•
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Mekonen Bayssie, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-251-7489 or email:
Please refer to Docket ID NRC-2012-0152 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
•
•
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
•
Please include Docket ID NRC-2012-0152 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is issuing for public comment a draft guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The draft regulatory guide, entitled, “Design, Inspection, and Testing Criteria for Air Filtration and Adsorption Units of Normal Atmosphere Cleanup Systems in Light-Water-Cooled Nuclear Power Plants,” is temporarily identified by its task number, DG-1280. The DG-1280 is proposed revision 3 of Regulatory Guide 1.140, dated June 2001. Since the last revision of RG 1.140, The American Society of Mechanical Engineers (ASME) Committee on Nuclear Air and Gas Treatment (CONAGT) has revised and expanded the scope of equipment covered by ASME-AG-1, “Code on Nuclear Air and Gas Treatment,” which the staff previously endorsed RG 1.140. The revision to ASME-AG-1b consolidated some requirements from ASME-N509, “Nuclear Power Plant Air Cleaning Units and Components”; ASME-N510, “Testing of Nuclear Air-Treatment Systems”; and other documents previously endorsed by the staff in RG 1.140. In addition, CONAGT has developed and published a new standard, ASME N511-2007, “Inservice Testing of Nuclear Air Treatment, Heating Ventilation and Air Conditioning Systems.” This new standard provides comprehensive test and inspection requirements and is written to complement the expanded ASME-AG-1b. This revision of the regulatory guide reflects the referenced industry standards.
Because this regulatory guide reflects current regulatory practice, it does not require a backfit analysis as described in 10 CFR 50.109(c).
For the Nuclear Regulatory Commission.
On January 6, 1982 (47 FR 596 and 47 FR 600), the U.S. Nuclear Regulatory Commission (NRC) published in the
The following list updates the names, addresses, and telephone numbers of those individuals in each State who are responsible for receiving information on these shipments. The list is published annually in the
Questions regarding this matter should be directed to Stephen N. Salomon, Division of Intergovernmental Liaison and Rulemaking, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, by email at
For the U.S. Nuclear Regulatory Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
June 29, 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 June 21, 2012, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
June 29, 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 June 21, 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
In response to an operational crisis in the securities industry between 1967 and 1970, the Commission adopted Rule 17a-11 under the Exchange Act on July 11, 1971. Rule 17a-11 requires broker-dealers that are experiencing financial or operational difficulties to provide notice to the Commission, the broker-dealer's designated examining authority (“DEA”), and the Commodity Futures Trading Commission (“CFTC”) if the broker-dealer is registered with the CFTC as a futures commission merchant. Rule 17a-11 is an integral part of the Commission's financial responsibility program which enables the Commission, a broker-dealer's DEA, and the CFTC to increase surveillance of a broker-dealer experiencing difficulties and to obtain any additional information necessary to gauge the broker-dealer's financial or operational condition.
Rule 17a-11 also requires over-the-counter (“OTC”) derivatives dealers and broker-dealers that are permitted to compute net capital pursuant to Appendix E to Exchange Act Rule 15c3-1 to notify the Commission when their tentative net capital drops below certain levels. OTC derivatives dealers must also provide notice to the Commission of backtesting exceptions identified pursuant to Appendix F of Rule 15c3-1 (17 CFR 240.15c3-1f).
Compliance with the Rule is mandatory. The Commission will generally not publish or make available to any person notices or reports received pursuant to Rule 17a-11. The
Only broker-dealers whose capital declines below certain specified levels or who are otherwise experiencing financial or operational problems have a reporting burden under Rule 17a-11. In 2011, the Commission received 465 notices under this Rule, including one notice from an OTC derivatives dealer permitted to compute net capital pursuant to Appendix E to Exchange Act Rule 15c3-1.
Each broker-dealer reporting pursuant to Rule 17a-11 will spend approximately one hour preparing and transmitting the notice required by the Rule. Accordingly, the total estimated annualized burden under Rule 17a-11 is 465 hours.
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.
The public may view 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 17Ad-4(b) & (c) (17 CFR 240.17Ad-4) is used to document when transfer agents are exempt, or no longer exempt, from the minimum performance standards and certain recordkeeping provisions of the Commission's transfer agent rules. Rule 17Ad-4(c) sets forth the conditions under which a registered transfer agent loses its exempt status. Once the conditions for exemption no longer exist, the transfer agent, to keep the appropriate regulatory authority (“ARA”) apprised of its current status, must prepare, and file if the ARA for the transfer agent is the Board of Governors of the Federal Reserve System (“BGFRS”) or the Federal Deposit Insurance Corporation (“FDIC”), a notice of loss of exempt status under paragraph (c). The transfer agent then cannot claim exempt status under Rule 17Ad-4(b) again until it remains subject to the minimum performance standards for non-exempt transfer agents for six consecutive months. The ARAs use the information contained in the notice to determine whether a registered transfer agent qualifies for the exemption, to determine when a registered transfer agent no longer qualifies for the exemption, and to determine the extent to which that transfer agent is subject to regulation.
The BGFRS receives approximately two notices of exempt status and two notices of loss of exempt status annually. The FDIC also receives approximately two notices of exempt status and two notices of loss of exempt status annually. The Commission and the Office of the Comptroller of the Currency (“OCC”) do not require transfer agents to file a notice of exempt status or loss of exempt status. Instead, transfer agents whose ARA is the Commission or OCC need only to prepare and maintain these notices. The Commission estimates that approximately ten notices of exempt status and ten notices of loss of exempt status are prepared annually by transfer agents whose ARA is the Commission. We estimate that the transfer agents for whom the OCC is their ARA prepare and maintain approximately five notices of exempt status and five notices of loss of exempt status annually. Thus, a total of approximately thirty-eight notices of exempt status and loss of exempt status are prepared and maintained by transfer agents annually. Of these thirty-eight notices, approximately eight are filed with an ARA. Any additional costs associated with filing such notices would be limited primarily to postage, which would be minimal. Since the Commission estimates that no more than one-half hour is required to prepare each notice, the total annual burden to transfer agents is approximately nineteen hours.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates 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. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
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.
Please direct your written comments to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312 or send an email to:
Rule 17a-6, OMB Control No. 3235-0489, SEC File No. 270-433.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17a-6 (17 CFR 240.17a-6) under the Securities Exchange Act of 1934 (15 U.S.C. 78a
There are currently 26 SROs: 15 national securities exchanges, 1 national securities association, the MSRB, and 9 registered clearing agencies. Of the 26 SROs, 2 SRO respondents have filed a record destruction plan with the Commission. The staff calculates that the preparation and filing of a new record destruction plan should take 160 hours. Further, any existing SRO record destruction plans may require revision, over time, in response to, for example, changes in document retention technology, which the Commission estimates will take much less than the 160 hours estimated for a new plan. Thus, the total annual compliance burden is estimated to be 60 hours per year. The approximate cost per hour is $305, resulting in a total cost of compliance for these respondents of $18,300 per year (30 hours @ $305 per hour).
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,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend Sections 4 and 6 of Schedule A to the FINRA By-Laws to implement changes to certain fees relating to the Central Registration Depository (“CRD®” or “CRD system”).
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
As described in further detail below, FINRA is proposing to amend Schedule A to the FINRA By-Laws (“Schedule A”) to implement changes to certain fees relating to the CRD system.
Under Section 4(b)(1) of Schedule A, FINRA charges an $85 fee for each initial or transfer Uniform Application for Securities Industry Registration or Transfer (“Form U4”) filed by a member in the CRD system to register an
This fee has been static since 1995.
As part of the securities industry's licensing and registration process, individuals and members are required to report certain disclosure events or proceedings to the CRD system. These disclosure matters include, for example, certain criminal charges and convictions, regulatory actions, investment-related civil judgments and injunctions, and financial events such as bankruptcies and unsatisfied liens. Individuals report these disclosure events or proceedings through Form U4 or Uniform Termination Notice for Securities Industry Registration (“Form U5”), while members report disclosure matters in which they or a control affiliate have been involved via the Uniform Application for Broker-Dealer Registration (“Form BD”).
When a disclosure filing is made for either an individual or member, FINRA must, among other things, confirm that the matter is properly reported; review any documentation submitted and/or determine whether additional documentation is required; conduct any necessary independent research; and, depending on the matter reported, analyze whether the event or proceeding subjects the individual or member to a statutory disqualification pursuant to Section 3(a)(39) of the Act.
Under Section 4(b)(3) of Schedule A, FINRA assesses a $95 fee to process an initial or amended Form U4 or Form U5 that includes the initial reporting, amendment or certification of one or more disclosure events or proceedings. FINRA currently does not charge a fee to process a Form BD that contains a disclosure event or proceeding. FINRA is proposing to increase the disclosure filing fee for Forms U4 and U5 to $110 and to establish a disclosure filing fee for Form BD of $110.
Reviewing disclosure information has become more complex, in part because Forms U4 and U5 have added further disclosure questions
Under Section 4(b)(6) of Schedule A, FINRA currently charges an annual $30 system processing fee for each member's registered individuals. FINRA is proposing to increase the system processing fee to $45. This fee has not been increased since January 2000.
FINRA processes fingerprints submitted by members on behalf of their associated persons who are required to be fingerprinted pursuant to Section 17(f)(2) of the Act
Members submit fingerprints to FINRA either electronically or via a hard copy fingerprint card. FINRA is proposing to increase the processing fee for fingerprints submitted electronically to $15 and to increase the fee for fingerprints submitted by a hard copy fingerprint card to $30.
The fingerprint fee has not increased since 2003.
In addition to processing fingerprints submitted by members, FINRA also processes and posts fingerprint results and identifying information submitted by a member that have been processed through another SRO. Pursuant to Section 4(b)(5) of Schedule A, FINRA charges a fee of $13 for processing and posting these submissions. FINRA is proposing to increase this fee to $30.
This fee has been static since 2003.
FINRA's Mass Transfer Program allows for the bulk transfer of registration and fingerprint information within the CRD system when a member is involved in a business combination such as a merger, consolidation or reorganization with another member. Under Section 6(b) of Schedule A, a member that FINRA determines to be a successor organization to a predecessor member is not required to pay the fees for the re-registration of branch offices and personnel of the predecessor as part of the mass transfer. A non-successor member, however, is required to pay these re-registration fees.
FINRA is proposing to eliminate the exception to the payment of re-registration fees for successor members involved in a mass transfer. FINRA notes that a mass transfer, which is an optional service that FINRA makes available to member firms that engage in a business combination, involves significant work on FINRA's part, including reviewing transaction details; entering the mass transfer into the CRD system; addressing questions from firm personnel or, in certain circumstances, providing them with training; and post-mass transfer troubleshooting. The elimination of the exception will result in all members that participate in FINRA's Mass Transfer Program to be [sic] assessed fees for the re-registration of branch offices and personnel of the predecessor member.
Under Section 4(h) of Schedule A, FINRA charges a fee of $10 per day, up to a maximum of $300, for each day that a new disclosure event or a change in the status of a previously reported disclosure event is not timely filed on an initial or amended Form U5 or an amended Form U4. This fee is assessed starting on the day following the last date on which the event or change in status was required to be reported.
FINRA is proposing to increase the late disclosure fee to $100 for the first day that an applicable disclosure event is not timely filed and $25 for each subsequent day, up to a maximum of 60 days. Under the proposal, the maximum amount of the late disclosure fee will increase from $300 to $1,575.
The current late disclosure filing fee has been in effect and remained static since 2004.
FINRA has filed the proposed rule change for immediate effectiveness. FINRA is proposing that the implementation date of the proposed rule change will be January 2, 2013. Specifically, the proposed initial/transfer registration fee, disclosure filing, fingerprint, and late disclosure fees would become effective for filings or fingerprints submitted on or after January 2, 2013. The proposed changes to the mass transfer registration fees would become effective for mass transfers executed on or after January 2, 2013. Lastly, the proposed system processing fee would become effective for the 2013 Renewal Program.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act,
FINRA believes that the proposed fees are reasonable based on the increased costs associated with operating and maintaining its registration and disclosure programs, specifically the CRD system and BrokerCheck. The proposed fees also contribute to the general funding of FINRA's overall regulatory program and serve to ensure that FINRA is sufficiently capitalized to meet its regulatory responsibilities. The current fees have remained static for at least seven years and some of the fees have not been increased in over 16 years. During this time, several enhancements have been made to the CRD system, including: (1) Incorporation of various uniform registration form changes; (2) electronic fingerprint processing; (3) Web EFT
FINRA further believes that the proposed fees are reasonable because they help to ensure the integrity of the information in the CRD system. The integrity of the information in the CRD system is very important because the Commission, FINRA, other SROs and state securities regulators use the CRD system to make licensing and registration decisions, among other things. Furthermore, the information displayed in BrokerCheck, which investors use to help make informed choices about the individuals and firms with which they currently conduct or are considering conducting business, is derived from the CRD system.
FINRA also believes that the proposed fees are equitably allocated in that they will apply equally to all individuals and members required to report information to the CRD system. Thus, those members that register more individuals or submit more filings through the CRD system will generally pay more in fees than those members that use the CRD system to a lesser extent.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 ISE Rule 720 regarding Obvious Errors. The text of the proposed rule change is available on the Exchange's Web site
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend ISE Rule 720 regarding Obvious Errors.
This proposed rule change will add additional criteria and clarifying language to the current rule. Specifically, under the revised rule, trades in series quoted no bid on the Exchange would be subject to nullification provided: (i) The bid in that series immediately preceding the execution was, and for five (5) seconds prior to the execution remained, zero and (ii) at least one strike below (for calls) or above (for puts) in the same option class was quoted no bid at the time of execution. Thus, for example, if a trade occurs in the ABC 45 call option series when the series was quoted $0.00-$0.10, the trade may be nullified if (i) the bid was $0.00 for at least five (5) seconds prior to the execution and (ii) at least one call option series in ABC with a strike below 45 (e.g., the ABC 30, 35 or 40 call option series) had a bid of $0.00 at the time of execution.
The revised no bid provision would also provide that each group of series in an options class with a non-standard deliverable will be treated as a separate options class. Thus, for example, if due to a reorganization certain of the series in the ABC option class have a deliverable of 150 shares per options contract (as compared to the standard 100 shares per option contract), all ABC option series that are subject to the 150 contract delivery requirements would be considered separately from the ABC
The Exchange believes that the proposed rule change is reasonable and objective, and would serve to better identify instances where the no bid provision in intended to apply. The purpose of this proposed rule change is to align the Exchange's rule with rules currently in place at other exchanges.
The basis under the Securities Exchange Act of 1934 (“Exchange Act”) for this proposed rule change is the requirement under Section 6(b)(5) that an exchange have rules that are designed to promote just and equitable principles of trade, and to remove impediments to and perfect the mechanism for a free and open market and a national market system, and in general, to protect investors and the public interest.
The Exchange understands that, in approving proposals of other exchanges related to adjusting and nullifying option trades involving obvious errors, the Commission has focused on the need for specificity and objectivity with respect to exchange determinations and processes for reviewing such determinations.
The Exchange also believes that the proposed rule change would benefit investors and market participants that are members of multiple exchanges by more closely aligning the Exchange's rules with respect to obvious errors with those of other exchanges. In this respect, the proposed rule change helps foster certainty for market participants trading on multiple exchanges. Accordingly, the Exchange believes that the increased specificity resulting from the proposed rule change, combined with the continued objective nature of the Exchange's process for rendering and reviewing trade nullification determinations, is consistent with prior guidance from the Commission, is consistent with the Exchange Act and is consistent with the maintenance of a fair and orderly market and the protection of investors and the public interest.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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”),
NASDAQ proposes to modify the optional Enterprise License fee for Non-Professional Subscribers of certain NASDAQ Depth-of-Book market data. NASDAQ will implement the proposed revised fee on July 1, 2012.
(a)-(b) No change.
(c) Enterprise License Fees
(1)-(2) No Change.
(3) As an alternative to subsections (1) and (2) above, a Distributor that is also a broker-dealer may pay a monthly fee of $
(d)-(e) No change.
In its filing with the Commission, NASDAQ included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASDAQ has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is proposing a change to the Enterprise License Fee for Non-Professional Usage of certain NASDAQ Depth-of-Book market data. NASDAQ Rule 7023(c)(3) offers an optional Enterprise License for unlimited Non-Professional Subscribers of NASDAQ Level 2, NASDAQ TotalView, or NASDAQ OpenView for broker-dealers registered under the Act. Specifically, NASDAQ proposes to increase the optional fee for Distributors from $325,000 to $500,000 per month that covers all Non-Professional Subscribers with whom the firm has a brokerage relationship. This Depth-of-Book Enterprise License Fee includes Non-Professional Subscriber fees, but does not include Distributor fees. Non-broker-dealer vendors and application service providers are not eligible for the Enterprise License; such firms typically pass through the cost of market data Subscriber fees to their customers.
NASDAQ continues to seek broader distribution of Depth-of-Book data and to reduce the cost of providing Depth-of-Book data to larger numbers of investors. In the past, NASDAQ has accomplished this goal in part by offering similar enterprise licenses for Professional and Non-Professional Usage of TotalView which contains the full Depth-of-Book data for the NASDAQ Market Center Execution System. NASDAQ believes that the adoption of enterprise licenses has led to greater distribution of market data, particularly among Non-Professional Subscribers.
In addition to increased administrative flexibility, enterprise licenses also encourage broader distribution by firms that are currently over the fee cap as well as those that are approaching the cap and wish to take advantage of the benefits of the program. Further, NASDAQ believes that capping fees in this manner creates goodwill with broker-dealers and increases transparency for retail investors.
The Depth-of-Book Enterprise License Fee is completely optional and does not replace existing enterprise license fee alternatives set forth in Rule 7023. Additionally, the proposal does not impact individual Subscriber fees for any product or raise the costs to any Subscriber of any NASDAQ data product. The market for this Depth-of-Book information is highly competitive and continually evolves as products develop and change. As a result, it is proposed that the current fee be increased, in part, due to a change in market data distribution and growing economies of scale in the industry. Subsequent to the introduction of the Depth-of-Book Enterprise License, there has been a substantial change in the adoption rate and distribution of Depth-of-Book data. Additionally, as broker/dealers consolidate and continue to grow organically, NASDAQ needs to adjust its enterprise license pricing model to better reflect current market conditions. The adjustment of this fee reflects these and other market forces.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
On July 21, 2010, President Barack Obama signed into law H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), which amended Section 19 of the Act. Among other things, Section 916 of the Dodd-Frank Act amended paragraph (A) of Section 19(b)(3) of the Act by inserting the phrase “on any person, whether or not the person is a member of the self-regulatory organization” after “due, fee or other charge imposed by the self-regulatory organization.” As a result, all SRO rule proposals establishing or changing dues, fees, or other charges are immediately effective upon filing regardless of whether such dues, fees, or other charges are imposed on members of the SRO, non-members, or both. Section 916 further amended paragraph (C) of Section 19(b)(3) of the Act to read, in pertinent part, “At any time within the 60-day period beginning on the date of filing of such a proposed rule change in accordance with the provisions of paragraph (1) [of Section 19(b)], the Commission summarily may temporarily suspend the change in the rules of the self-regulatory organization made thereby, if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this title. If the Commission takes such action, the Commission shall institute proceedings under paragraph (2)(B) [of Section 19(b)] to determine whether the proposed rule should be approved or disapproved.”
The decision of the United States Court of Appeals for the District of Columbia Circuit in
For the reasons stated above, NASDAQ believes that the proposed fees are fair and equitable, and not unreasonably discriminatory. As described above, the proposed fees are based on pricing conventions and distinctions that exist in NASDAQ's current fee schedule, and the fee schedules of other exchanges. These distinctions (top-of-book versus Depth-of-Book, Professional versus non-Professional Subscribers, Direct versus Indirect Access, Internal versus External Distribution) are each based on principles of fairness and equity that have helped for many years to maintain fair, equitable, and not unreasonably discriminatory fees, and that apply with equal or greater force to the current proposal.
As described in greater detail below, if NASDAQ has calculated improperly and the market deems the proposed fees to be unfair, inequitable, or unreasonably discriminatory, firms can diminish or discontinue the use of their data because the proposed fee is entirely optional to all parties. Firms are not required to purchase Depth-of-Book data or to utilize any specific pricing alternative if they do choose to purchase Depth-of-Book data. NASDAQ is not required to make Depth-of-Book data available or to offer specific pricing alternatives for potential purchases. NASDAQ can discontinue offering a pricing alternative (as it has in the past) and firms can discontinue their use at any time and for any reason (as they often do), including due to their assessment of the reasonableness of fees charged. NASDAQ continues to establish and revise pricing policies aimed at increasing fairness and equitable allocation of fees among Subscribers.
NASDAQ believes that the Depth-of-Book Enterprise License promotes increased transparency by offering a pricing option resulting in lower fees for heavy users of Depth-of-Book data. While NASDAQ may need to periodically adjust the Depth-of-Book Enterprise License to reflect market forces, it continues to view the fee cap as a way for firms to make additional information available to the firms' clients, thereby increasing transparency of the market.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Notwithstanding its determination that the Commission may rely upon competition to establish fair and equitably allocated fees for market data, the
There is intense competition between trading platforms that provide transaction execution and routing services and proprietary data products. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price and distribution of its data products. Without the prospect of a taking order seeing and reacting to a posted order on a particular platform, the posting of the order would accomplish little. Without trade executions, exchange data products cannot exist. Data products are valuable to many end Subscribers only insofar as they provide information that end Subscribers expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A broker-dealer will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the broker-dealer chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the broker-dealer will choose not to buy it. Moreover, as a broker-dealer chooses to direct fewer orders to a particular exchange, the value of the product to that broker-dealer decreases, for two reasons. First, the product will contain less information, because executions of the broker-dealer's orders will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that broker-dealer because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the broker-dealer is directing orders will become correspondingly more valuable.
Thus, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platform may choose to pay rebates to attract orders, charge relatively low prices for market information (or provide information free of charge) and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market information, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. This would be akin to strictly regulating the price that an automobile manufacturer can charge for car sound systems despite the existence of a highly competitive market for cars and the availability of after-market alternatives to the manufacturer-supplied system.
The market for market data products is competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market.
Broker-dealers currently have numerous alternative venues for their order flow, including ten SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated Trade Reporting Facilities (“TRFs”) compete to attract internalized transaction reports. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE Amex, NYSEArca, and BATS.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple broker-dealers' production of proprietary data products.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing Depth-of-Book data on the Internet. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace.
Market data vendors provide another form of price discipline for proprietary data products because they control the primary means of access to end Subscribers. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Thomson Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end Subscribers will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail broker-dealers, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: they can simply refuse to purchase any proprietary data product that fails to provide sufficient value. NASDAQ and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While broker-dealers have previously published their proprietary data individually, Regulation NMS encourages market data vendors and broker-dealers to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg, and Thomson Reuters.
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Competition among platforms has driven NASDAQ continually to improve its platform data offerings and to cater to customers' data needs. For example, NASDAQ has developed and maintained multiple delivery mechanisms (IP, multi-cast, and compression) that enable customers to receive data in the form and manner they prefer and at the lowest cost to them. NASDAQ offers front end applications such as its “Bookviewer” to help customers utilize data. NASDAQ has created new products like TotalView Aggregate to complement TotalView ITCH and/NQDS, because offering data in multiple formatting allows NASDAQ to better fit customer needs. NASDAQ offers data via multiple extranet providers, thereby helping to reduce network and total cost for its data products. NASDAQ has developed an online administrative system to provide customers transparency into their data feed requests and streamline data usage reporting. NASDAQ has also expanded its Enterprise License options that reduce the administrative burden and costs to firms that purchase market data.
Despite these enhancements and a dramatic increase in message traffic, NASDAQ's fees for market data have remained flat. In fact, as a percent of total Subscriber costs, NASDAQ data fees have fallen relative to other data usage costs—including bandwidth, programming, and infrastructure—that have risen. The same holds true for execution services; despite numerous enhancements to NASDAQ's trading platform, absolute and relative trading costs have declined. Platform competition has intensified as new entrants have emerged, constraining prices for both executions and for data.
The vigor of competition for Depth-of-Book information is significant and the Exchange believes that this proposal itself clearly evidences such competition. NASDAQ is offering a new pricing model in order to keep pace with changes in the industry and evolving customer needs. It is entirely optional and is geared towards attracting new customers, as well as retaining existing customers.
The Exchange has witnessed competitors creating new products and innovative pricing in this space over the course of the past year. NASDAQ continues to see firms challenge its pricing on the basis of the Exchange's explicit fees being higher than the zero-priced fees from other competitors such as BATS. In all cases, firms make decisions on how much and what types of data to consume on the basis of the total cost of interacting with NASDAQ or other exchanges. Of course, the explicit data fees are but one factor in a total platform analysis. Some competitors have lower transactions fees and higher data fees, and others are vice versa. The market for this Depth-of-Book information is highly competitive and continually evolves as products develop and change.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 4758(a)(1)(A) to reflect a change in NASDAQ's routing functionality.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
(1) The Order Routing Process shall be available to Participants from 7:00 a.m. until 8:00 p.m. Eastern Time, and shall route orders as described below. All routing of orders shall comply with Rule 611 of Regulation NMS under the Exchange Act.
(A) The System provides a variety of routing options. Routing options may be combined with all available order types and times-in-force, with the exception of order types and times-in-force whose terms are inconsistent with the terms of a particular routing option. The System will consider the quotations only of accessible markets. The term “System routing table” refers to the proprietary process for determining the specific trading venues to which the System routes orders and the order in which it routes them. Nasdaq reserves the right to maintain a different System routing table for different routing options and to modify the System routing table at any time without notice. The System routing options are:
(i) DOT is a routing option for orders that the entering firm wishes to designate for participation in the NYSE or NYSE Amex opening or closing processes. DOT orders are routed directly to NYSE or NYSE Amex, as appropriate. After attempting to execute in the opening or closing process, DOT orders thereafter check the System for available shares and are converted into SCAN or STGY orders, depending on the designation of the entering firm. DOT orders that are designated to participate in the NYSE or NYSE Amex opening process but that are entered after 9:30 a.m. will also be converted into SCAN or STGY orders, depending on the designation of the entering firm.
(ii) a. DOTI is a routing option for orders that the entering firm wishes to direct to the NYSE or NYSE Amex without returning to the Nasdaq Market Center. DOTI orders check the System for available shares and then are sent to destinations on the System routing table before being sent to NYSE or NYSE Amex, as appropriate. DOTI orders do not return to the Nasdaq Market Center book after routing.
b. The entering firm may alternatively elect to have DOTI orders check the System for available shares and thereafter be directly sent to NYSE or NYSE Amex as appropriate.
(iii) STGY is a routing option under which orders check the System for available shares and
(iv) SCAN is a routing option under which orders check the System for available shares and
(v) TFTY is a routing option under which orders check the System for available shares only if so instructed by the entering firm and are thereafter routed to destinations on the System routing table. If shares remain un-
(vi) MOPP is a routing option under which orders route only to Protected Quotations and only for displayed size. If shares remain unexecuted after routing, they are posted to the book. Once on the book, should the order subsequently be locked or crossed by another market center, the System will not route the order to the locking or crossing market center.
(vii) SAVE is a routing option under which orders may either (i) route to the NASDAQ OMX BX Equities Market and NASDAQ OMX PSX, check the System, and then route to other destinations on the System routing table, or (ii) may check the System first and then route to destinations on the System routing table. If shares remain un-executed after routing, they are posted to the book. Once on the book, should the order subsequently be locked or crossed by another market center, the System will not route the order to the locking or crossing market center.
(viii) SOLV is a routing option under which orders may either (i) route to the NASDAQ OMX BX Equities Market and NASDAQ OMX PSX, check the System, and then route to other destinations on the System routing table, or (ii) may check the System first and then route to destinations on the System routing table. If shares remain un-executed after routing, they are posted to the book. Once on the book, should the order subsequently be locked or crossed by another accessible market center, the System shall route the order to the locking or crossing market center.
(ix) “Directed Orders” are routed orders described in Rule 4751.
(x) LIST is a routing option under which an order, if received before the security has opened on its primary listing market, will be routed to the primary listing market for participation in that market's opening process. After the security has opened on its primary listing market, unexecuted shares will be returned to the NASDAQ system. Thereafter, the order will check the System for available shares
(xi) CART is a routing option under which orders route to the NASDAQ OMX BX Equities Market and NASDAQ OMX PSX and then check the System. If shares remain un-executed, they are posted to the book or cancelled. Once on the book, should the order subsequently be locked or crossed by another market center, the System will not route the order to the locking or crossing market center.
Orders that do not check the System for available shares prior to routing may not be sent to a facility of an exchange that is an affiliate of Nasdaq, except for orders that are sent to the NASDAQ OMX BX Equities Market or to the NASDAQ OMX PSX facility of NASDAQ OMX PHLX.
(B) No change.
(b)-(c) No change.
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.
NASDAQ is proposing to amend Rule 4758(a)(1)(A) to reflect a change in NASDAQ's order routing functionality, which will allow routable orders
NASDAQ has observed that upon partial execution of a routable order at NASDAQ, as in the example above, market participants often react to the order by cancelling their orders on other markets and entering new orders at inferior prices. This occurs because the current process directs the order to NASDAQ before attempting to access available liquidity at other markets and thereby allows market participants to react to the execution (an effect known as “market impact” or “information leakage”). As a consequence, the available shares at the away market are no longer available, resulting in a lower likelihood of successfully accessing liquidity on away markets (
NASDAQ is proposing to execute routable orders against the NASDAQ book for available shares and to simultaneously route any remaining shares to additional markets. Specifically, under the proposed change a routable order would attempt to execute against the available shares at NASDAQ and, to the extent the order would not be filled by such available shares, NASDAQ would simultaneously route the remainder of the order to other venues, according to NASDAQ's System routing table, in a manner consistent with Regulation NMS (
NASDAQ notes that it is not changing the execution and routing sequence of all routable orders. The TFTY, SAVE, SOLV, and CART orders are designed to execute serially as part of their strategies, which is generally to reduce the blended fees associated with transacting on multiple markets. As such, simultaneous routing of such orders would not result in a better execution in terms of the goals of these routable order types.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 March 9, 2012, 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”)
Under NYSE Arca Rule 6.35, a market maker is required to effect at least 75% of its trading activity (measured in terms of contract volume per quarter) in classes within its appointment. Commentary .01 to NYSE Arca Rule 6.35 clarifies that a market maker's trades effected on the trading floor to accommodate cross trades executed pursuant to NYSE Arca Rule 6.47 do not count for or against the market maker's 75% requirement, regardless of whether the trades are in issues within or without the market maker's appointment. The Exchange proposes to amend Commentary .01 to NYSE Arca Rule 6.35 to allow a market maker's trades effected on the trading floor to accommodate cross trades executed pursuant to NYSE Arca Rule 6.47 to count toward the market maker's 75% requirement, regardless of whether the trades are in issues within or without the market maker's appointment.
Specifically, the Exchange asserts that the proposed rule change would not diminish a market maker's obligation when trading in open outcry or when trading electronically. The Exchange states that whenever market makers trade in classes of options outside of their appointment, they must fulfill the same obligations as they do in their appointed classes. The Exchange also states that, when trading in open outcry in option classes outside of their appointment, market makers may not engage in transactions that are disproportionate in relation to or in derogation of the performance of their obligations in their appointed classes. In addition, while all option classes listed on the Exchange have appointed market makers, not all of those appointed market makers are located on the trading floor, and therefore market makers may be called upon to provide liquidity via open outcry in issues outside of their appointment. According to the Exchange, the proposed rule change will thus help to encourage market maker participation in open outcry, which will promote liquidity and price improvement on the Exchange. The Exchange also notes that the proposed rule change is only applicable to trades where a market maker is trading with a floor broker representing agency orders, and not when a market maker is trading with another market maker. Finally, the Exchange states its belief that the proposed rule change could lead to a decrease in internalization of orders because of the potential for greater participation by competing market makers on open outcry trades.
In addition, the Exchange proposes to make non-substantive changes to NYSE Arca Rules 6.35, 6.37, 6.84, and 10.12. Specifically, the Exchange proposes to replace the term “Primary Appointment,” which is not a defined term, with the word “appointment” as it is used elsewhere in NYSE Arca Rule 6.35.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange proposes to allow a market maker's trades effected on the trading floor to accommodate cross trades executed pursuant to NYSE Arca Rule 6.47 to count toward the 75% in-appointment requirement, regardless of whether the trades are in issues within or without the market maker's appointment. The Commission believes that the proposal is consistent with the Act. According to the Exchange, while all option classes listed on the Exchange have appointed market makers, not all of those market makers are located on the trading floor. Thus, at times the Exchange may need to call upon a market maker to provide liquidity via open outcry in issues outside of the market maker's appointment. The Commission notes that the proposed rule change may provide an incentive for market makers to provide liquidity to the trading floor. Market makers may be encouraged to increase participation in open outcry trading, because the trades effected on the trading floor to accommodate cross trades executed pursuant to NYSE Arca Rule 6.47 will be counted towards a market maker's 75% in-appointment requirement. Greater market maker participation in cross trades executed pursuant to NYSE Arca Rule 6.47 may also present opportunities for price improvement on the trading floor.
The Commission notes that whenever market makers enter the trading crowd for a class of options in which they do not hold an appointment in other than a floor brokerage capacity, they must fulfill the market maker obligations established by Exchange rules.
Further, the Commission believes that the proposal to replace the undefined term “Primary Appointment” with the term “appointment” is consistent with the Act because using consistent terminology should provide clarity and reduce confusion with respect to the application of Exchange rules regarding market makers.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 3, 2012, 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 has proposed to provide a new quotation type—the PNPLO Quotation. The PNPLO Quotation would be an electronic Market Maker
The PNPLO Quotation may only be submitted for options in penny pilot issues.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange noted that the quoting algorithms of Market Makers may not be able to account accurately for the risk of interacting with resting, non-displayed liquidity in penny pilot issues and the related take fees. The Exchange represents that this challenge may result in Market Makers widening their quotes in penny pilot classes.
The Commission also believes that the proposed rule change is not unfairly discriminatory. Currently, market participants including Market Makers can achieve functionality similar to the PNPLO Quotation through use of the PNP-Light Order, which is a non-routable order type that is only eligible to execute against displayed liquidity.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration (SSA).
Notice of a renewal of an existing computer matching program that will expire on September 30, 2012.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a renewal of an existing computer matching program that we are currently conducting with RRB.
We will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefaxing to (410) 966-0869 or writing to the Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the conditions under which computer matching involving the Federal government could be performed and adding certain protections for persons applying for, and receiving, Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such persons.
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain approval of the matching agreement by the Data Integrity Boards of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments.
We have taken action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
SSA and RRB.
This computer matching agreement sets forth the terms, conditions, and safeguards under which RRB will disclose to us information necessary to verify an individual's self-certification of eligibility for Extra Help with Medicare Prescription Drug Plan Costs program (Extra Help). It will also enable us to identify individuals who may qualify for Extra Help as part of our Medicare outreach efforts.
The legal authority for us to conduct this matching activity is contained in section 1860D-14 (42 U.S.C. 1395w-114) and section 1144 (42 U.S.C. 1320b-14) of the Act.
RRB will provide us with data from its RRB-22 and RRB-20 systems of records.
We will match RRB's data with our Medicare Database (MDB) File, system of records No. 60-0321
RRB will transmit its annuity payment data monthly. The file will consist of approximately 560,000 electronic records.
RRB will transmit its Post Entitlement System file daily. The number of records will differ each day, but consist of approximately 3,000 to 4,000 records each month.
RRB will transmit files on all Medicare eligible Qualified Railroad Retirement Beneficiaries from its RRB-20 and RRB-22 systems of records to report address changes and subsidy changing event information monthly. The file will consist of approximately 520,000 electronic records. The number of people who apply for Extra Help determines in part the number of records matched.
Our comparison file will consist of approximately 47.5 million records obtained from MDB.
We will conduct the computer match using each individual's Social Security Number, name, date of birth, RRB claim number, and RRB annuity payment amount in both RRB and MDB files.
The effective date of this matching program is October 1, 2012; if the following notice periods have lapsed: 30 days after publication of this notice in the
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Ona M. Hahs, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6473). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA.
This notice announces actions taken by the FWHA that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(
For FHWA: Mr. Duane Thomas, Project Manager, Federal Highway Administration—Kentucky Division, John C. Watts Federal Building, 330 W. Broadway, Frankfort, KY 40601; telephone—502-223-6720; email—
Notice is hereby given that the FHWA has taken final agency actions subject to 23 U.S.C. 139(
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Supplemental Final Environmental Impact Statement (SFEIS) for the project, approved on April 20, 2012, in the FHWA Revised Record of Decision (Revised ROD) issued on June 20, 2012, and in other documents in the FHWA administrative record. A Final Environmental Impact Statement (FEIS) and Section 4(f) Evaluation were previously issued for the Project on April 8, 2003 and were followed by the issuance of a Record of Decision on September 6, 2003. The SFEIS, Revised ROD, and other project records are available by contacting FHWA, the Kentucky Transportation Cabinet, or the Indiana Department of Transportation at the addresses provided above. The SFEIS and Revised ROD can be viewed and downloaded from the project Web site at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139(
Federal Railroad Administration (FRA) United State Department of Transportation (DOT).
Notice of availability of draft environmental impact statement.
FRA is issuing this notice to advise the public that a Draft Environmental Impact Statement (Draft EIS) has been prepared for the Chicago, Illinois to St. Louis, Missouri High Speed Rail Corridor Program. The Draft EIS includes a Tier 1 corridor-level evaluation and a Tier 2 project-level evaluation for the Springfield Rail Improvements Project. FRA is the lead federal agency and the Illinois Department of Transportation (IDOT) is the lead state agency for the environmental review process.
IDOT proposes to improve high speed passenger rail service between Chicago, Illinois and St. Louis, Missouri, including the rail lines through Springfield, Illinois. The proposed including the development of double tracking along the existing Amtrak railroad corridor to improve high-speed passenger service reliability and safety, and to increase the number of trips between Chicago and St. Louis, as well as including improvements to railroad crossings, signals, and stations.
The Draft EIS presents the Program's purpose and need, identifies all reasonable alternatives, describes the affected environment, analyzes the potential environmental impacts of all the reasonable alternatives and the no action alternative, and identifies appropriate mitigation measures to minimize the potential environmental impacts.
Written comments on the 45-day Draft EIS should be provided to IDOT on or before Monday, August 20th, 2012. Public hearings are scheduled to occur in August, 2012 in Chicago, IL, Springfield, IL, Alton, IL, Joliet, IL, and Bloomington, IL at times and dates to be announced on the High Speed Rail Program's Web site at
Written comments on the Draft EIS should be sent directly to Joseph Shacter, Illinois Department of Transportation, 100 West Randolph Street, Suite 6-600, Chicago, Illinois 60601, or submitted through the High Speed Rail Program's Web site at
Andrea E. Martin, Environmental Protection Specialist, Office of Railroad Policy and Development, Federal Railroad Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., MS-20, Washington, DC 20590; email:
The proposed High Speed Rail Program would include the development of double track along the existing Amtrak railroad corridor between Chicago, Illinois and St. Louis, Missouri to improve high-speed passenger service reliability and safety, and to increase the number of trips, as well as include improvements to railroad crossings, signals, and stations. These proposed improvements are in addition to those improvements associated with the
The current Chicago to St. Louis Corridor operates on a single track that is shared by both traditional freight and Amtrak passenger rail service. The EIS identifies and evaluates the environmental and transportation impacts associated with route alternatives and corridor-wide capacity enhancements, including double-track.
IDOT and FRA are using a tiered environmental process to evaluate the proposed Program. A tiered environmental process is a phased environmental review used in the development of complex projects. Under this process, the Draft EIS addresses broad, corridor-level issues and alternatives. Tier 2 environmental documents address individual component projects of the Selected Alternative carried forward from the Tier 1 environmental process. Concurrently with this Tier 1 study of the full Chicago to St. Louis Corridor, IDOT and FRA are conducting a Tier 2 analysis for the portion of the High Speed Rail corridor in Springfield, IL.
The corridor alternatives retained in the Draft EIS are the result of a screening process that used several evaluation criteria developed specifically for the Program. The screening criteria determined the route options that should be eliminated from further consideration. The four alternatives and no-build retained utilize combinations of the existing Amtrak passenger rail routes between Chicago and Joliet, Illinois, the City of Springfield, Illinois, and approaching St. Louis, Missouri and allow for eight daily round trips at 110 miles per hour (mph) on two tracks.
Other improvements identified in the Draft EIS include sidings, pedestrian grade separations at the stations, and grade separations along major roadways. After the public comment period for the Draft EIS and following completion of the Final EIS, individual component projects along the corridor would be advanced and studied in greater detail as Tier 2 project-level evaluations in the tiered environmental review process.
A Tier 2 project-level evaluation for improvements in Springfield is also included within the Draft EIS. The Springfield Rail Improvements Project has been advanced concurrently as a component of the overall corridor program. The Tier 2 evaluation considers the environmental and transportation impacts of rail routes through the City of Springfield, Illinois; addressing safety, noise, and traffic delays that would result from increased volumes of both passenger and freight rail traffic on the three north-south rail corridors that pass through the City of Springfield.
This Draft EIS has been prepared by FRA and IDOT consistent with the provisions of Section 102(2)(c) of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the Council on Environmental Quality (CEQ) regulations implementing NEPA (40 CFR part 1500 et seq.), and FRA's Procedures for Considering Environmental Impacts (64 FR 28545; May 26, 1999).
Copies of the Draft EIS are available online at FRA's Web site:
Wyoming Connect Railroad LLC (WCR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire by lease from Union Pacific Railroad Company and to operate approximately 18.5 miles of rail line between milepost 0.0 at or near Yoder and milepost 18.5 at or near South Torrington, in Goshen County, Wyo.
The transaction is scheduled to be consummated on or after July 15, 2012 (30 days after the notice of exemption was filed).
WCR certifies that its projected annual revenues as a result of this transaction will not exceed those that would qualify it as a Class III rail carrier and will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35640, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Thomas F. McFarland, 208 South LaSalle St., Suite 1890, Chicago, IL 60604.
Board decisions and notices are available on our Web site at
By the Board.
Sisseton Milbank Railroad Company (SMRC), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from SLA Property Management Limited Partnership and Sisseton Milbank Railroad, Inc., their interests in, and to operate, an approximately 37.1-mile rail line between approximate railroad milepost 0.9 in or near Milbank and approximate railroad milepost 38.0 in or near Sisseton, in Grant and Roberts Counties, S.D.
This transaction is related to a concurrently filed petition for exemption in Docket No. FD 35642,
The parties expect to consummate the transaction on or after July 16, 2012.
SMRC certifies that its projected annual revenues as a result of this transaction do not exceed those that would qualify it as a Class III rail carrier and will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and ten copies of all pleadings, referring to Docket No. FD 35641, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Rose-Michele Nardi, Weiner Brodsky Sidman Kider, PC, 1300 Nineteenth Street NW., Fifth Floor, Washington, DC 20036-1609.
Board decisions and notices are available on our Web site at “
By the Board.
Surface Transportation Board.
Notice of Finance Application.
Professional Transportation, Inc. (PTI or Applicant), an interstate passenger motor carrier (MC-217444), has filed an application under 49 U.S.C. 14303 to acquire the assets of two interstate motor passenger common carrier subsidiaries of noncarrier Coach America Holdings, Inc.—CUSA ES, LLC (MC-463168) and CUSA CSS, LLC (MC-522544) (collectively, Coach America Subsidiaries). On June 5, 2012, Michael Yusim, an individual, filed a letter in opposition, asserting that the public interest would not be served by allowing the transaction to proceed without certain Department of Labor proceedings first being completed. A copy of this notice will be served on Mr. Yusim. Persons wishing to oppose the application must follow the rules set forth at 49 CFR 1182.5 and 1182.8.
Comments must be filed by August 13, 2012. Applicant may file a reply to any comments by August 28, 2012.
Send an original and 10 copies of any comments referring to Docket No. MCF 21046 to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, send one copy of comments to Applicant's representative: Andrew K. Light, Scopelitis, Garvin, Light, Hanson & Feary, P.C., 10 W. Market Street, Suite 1500, Indianapolis, IN 46204.
Marc Lerner, (202) 245-0390. Federal Information Relay Service (FIRS) for the hearing impaired: 1-800-877-8339.
The Coach America Subsidiaries are currently involved in proceedings instituted under Chapter 11 of the Bankruptcy Code, having filed a voluntary petition for relief with the U.S. Bankruptcy Court for the District of Delaware on January 3, 2012, and a motion to sell substantially all of their assets and effectively to liquidate on January 13, 2012. According to Applicant, the proposed transaction will be completed pursuant to 11 U.S.C. 105(a), 363 and 365 and Fed. R. Bankr. P. 2002, 6004, 6006, and 9014, and the bankruptcy court's order entered on May 25, 2012, authorizing and approving (1) the sale of substantially all of the assets of debtors CUSA ES, LLC and CUSA CSS, LLC free and clear of liens, claims, and encumbrances, and (2) the assumption and assignment of certain executory contracts and unexpired leases.
As indicated, Michael Yusim has filed a letter in opposition to the application by PTI to acquire the assets of the two Coach America Subsidiaries. The basis for his opposition relates to two cases alleging that his employer, an entity named Midnight Sun Tours, Inc. (Midnight Sun), a wholly owned subsidiary of the Coach America bus companies in bankruptcy, discriminated against drivers who accurately reported their hours on duty. According to Mr. Yusim, the two cases are pending before the Secretary of Labor (Secretary), but have been stayed by the bankruptcy court. Mr. Yusim requests that the Board disallow the sale of any subsidiaries of Coach America until the Secretary is allowed to hear the two cases.
Because we have received a timely comment in opposition to the application, we will not grant tentative authority under 49 CFR 1182.4(b).
Board decisions and notices are available on our Web site at
This decision will not significantly affect either the quality of the human environment or the conservation of energy resources.
1. Comments must be filed by August 13, 2012. Applicant may file a reply to any comments by August 28, 2012.
2. This notice will be effective on its date of service.
3. A copy of this notice will be served on: (1) The U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590; (2) the U.S. Department of Justice, Antitrust Division, 950 Pennsylvania Avenue NW., Washington, DC 20530; (3) the U.S. Department of Transportation, Office of the General Counsel, 1200 New Jersey Avenue SE., Washington, DC 20590; (4) the Federal Trade Commission, Bureau of Competition, Premerger Notification Office, 600 Pennsylvania Avenue NW., Washington, DC 20580; and (5) Michael Yusim, 7499 Eagle Point Drive, Delray Beach, FL 33446.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Begeman.
Under 49 CFR 1011.7(a)(2)(x)(A), the Director of the Office of Proceedings (Director) is delegated the authority to determine whether to issue notices of exemption under 49 U.S.C. 10502 for lease and operation transactions under 49 U.S.C. 10902. However, the Board reserves to itself the consideration and disposition of all matters involving issues of general transportation importance. 49 CFR 1011.2(a)(6). Accordingly, the Board revokes the delegation to the Director with respect to issuance of the notice of exemption for lease and operation of the rail line at issue in this case. The Board determines that this notice of exemption should be issued, and does so here.
Midwest Rail, LLC d/b/a Toledo, Lake Erie and Western Railway (Toledo), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to lease from Norfolk Southern Railway Company (NSR) and operate a 1.8-mile line of railroad between milepost TS 13.2 near Maumee, Ohio and milepost TS 15.0 in Waterville, Ohio, (the Line). According to Toledo, Toledo and NSR have entered into a Lease Agreement (Agreement) whereby Toledo will lease the Line from NSR. The term of the lease is 10 years.
Pursuant to 49 CFR 1150.43(h), Toledo has disclosed that the Agreement contains an interchange commitment in the form of lease credits, depending on the number of carloads interchanged with NSR at milepost TS 13.2 in a given year.
Toledo certifies that its projected annual revenues as a result of this transaction will not result in Toledo becoming a Class I or Class II rail carrier. Toledo further certifies that its projected annual revenues will not exceed $5 million.
The earliest the transaction can be consummated is July 15, 2012, the effective date of the exemption (30 days after the exemption was filed).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35634, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on John D. Heffner,
Board decisions and notices are available on our Web site at
1. The delegation of authority to the Director of the Office of Proceedings under 49 CFR 1011.7(a)(2)(x)(A) to determine whether to issue a notice of exemption in this proceeding is revoked.
2. This decision is effective on the date of service.
Decided: June 26, 2012.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Begeman. Vice Chairman Mulvey approved with a separate expression.
Vice Chairman Mulvey, commenting:
Interchange commitments have the potential to limit or, in some cases, to effectively eliminate, competition between rail carriers. Because this can result in long-term harm to shippers, I believe that the Board should be carefully scrutinizing transactions that include interchange commitments. Typically, such scrutiny is not possible within the Notice of Exemption process due to its short time-frames. I have long urged the Board to require that such transactions be analyzed using more detailed processes that allow the Board to consider (1) the nature of the interchange commitment, (2) how many shippers and carloads will be impacted by the interchange commitment, and (3) what competitive routing options are being foreclosed during the term of the lease.
In this case, however, there appears to be no need for concern regarding competitive harm. Toledo has confirmed that it will not connect physically to any carrier other than NSR, the carrier from whom it is leasing the line. Although the lease contains a rental credit based on the number of cars Toledo interchanges with NSR, because Toledo physically cannot interchange cars with a third-party carrier in any event, there will be no adverse competitive impact from the interchange commitment. Accordingly, I vote to approve the Notice of Exemption process for this transaction.
Alcohol and Tobacco Tax and Trade Bureau; Treasury.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, we invite comments on the proposed or continuing information collections listed below in this notice.
We must receive your written comments on or before August 28, 2012.
You may send comments to Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, at any of these addresses:
• P.O. Box 14412, Washington, DC 20044-4412;
• 202-453-2686 (facsimile); or
•
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form or recordkeeping requirement number, and OMB number (if any) in your comment. If you submit your comment via facsimile, send no more than five 8.5 x 11 inch pages in order to ensure electronic access to our equipment.
To obtain additional information, copies of the information collection and its instructions, or copies of any comments received, contact Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412; or telephone 202-453-2265.
The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau (TTB), as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please do not include any confidential or inappropriate material in your comments.
We invite comments on: (a) Whether this information collection is necessary for the proper performance of the agency's functions, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the information collection's burden; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the information collection's burden on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide the requested information.
Currently, we are seeking comments on the following forms and recordkeeping requirements:
Bureau of the Public Debt, Fiscal Service, Treasury.
Notice.
For the period beginning July 1, 2012, and ending on December 31, 2012, the prompt payment interest rate is 1
Comments or inquiries may be mailed to Dorothy Dicks, Reporting Team Leader, Federal Borrowings Branch, Division of Accounting Operations, Office of Public Debt Accounting, Bureau of the Public Debt, Parkersburg, West Virginia 26106-1328. A copy of this Notice is available at
Effective July 1, 2012, to December 31, 2012.
Brant McDaniel, Manager, Federal Borrowings Branch, Office of Public Debt Accounting, Bureau of the Public Debt, Parkersburg, West Virginia 26106-1328, (304) 480-5114; Dorothy Dicks, Reporting Team Leader, Federal Borrowings Branch, Division of Accounting Operations, Office of Public Debt Accounting, Bureau of the Public Debt, Parkersburg, West Virginia 26106-1328, (304) 480-5115; Paul Wolfteich, Chief Counsel, Office of the Chief Counsel, Bureau of the Public Debt, (202) 504-3705; or Brenda L. Hoffman, Attorney-Advisor, Office of the Chief Counsel, Bureau of the Public Debt, (202) 504-3706.
An agency that has acquired property or service from a business concern and has failed to pay for the complete delivery of property or service by the required payment date shall pay the business concern an interest penalty. 31 U.S.C. 3902(a). The Contract Disputes Act of 1978, Sec. 12, Public Law 95-563, 92 Stat. 2389, and the Prompt Payment Act, 31 U.S.C. 3902(a), provide for the calculation of interest due on claims at the rate established by the Secretary of the Treasury.
The Secretary of the Treasury has the authority to specify the rate by which the interest shall be computed for interest payments under section 12 of the Contract Disputes Act of 1978 and under the Prompt Payment Act. Under the Prompt Payment Act, if an interest penalty is owed to a business concern, the penalty shall be paid regardless of whether the business concern requested payment of such penalty. 31 U.S.C. 3902(c)(1). Agencies must pay the interest penalty calculated with the interest rate, which is in effect at the time the agency accrues the obligation to pay a late payment interest penalty. 31 U.S.C. 3902(a). “The interest penalty shall be paid for the period beginning on the day after the required payment date and ending on the date on which payment is made.” 31 U.S.C. 3902(b).
Therefore, notice is given that the Secretary of the Treasury has determined that the rate of interest applicable for the period beginning July 1, 2012, and ending on December 31, 2012, is 1
Environmental Protection Agency (EPA).
Proposed rule.
Based on its review of the air quality criteria and the national ambient air quality standards (NAAQS) for particulate matter (PM), the EPA proposes to make revisions to the primary and secondary NAAQS for PM to provide requisite protection of public health and welfare, respectively, and to make corresponding revisions to the data handling conventions for PM and ambient air monitoring, reporting, and network design requirements. The EPA also proposes revisions to the prevention of significant deterioration (PSD) permitting program with respect to the proposed NAAQS revisions. With regard to primary standards for fine particles (generally referring to particles less than or equal to 2.5 micrometers (μm) in diameter, PM
Comments must be received on or before August 31, 2012.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0492 by one of the following methods:
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Ms. Beth M. Hassett-Sipple, Health and Environmental Impacts Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C504-06, Research Triangle Park, NC 27711; telephone: (919) 541-4605; fax: (919) 541-0237; email:
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• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—the agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
A number of the documents that are relevant to this rulemaking are available through EPA's Office of Air Quality Planning and Standards (OAQPS) Technology Transfer Network (TTN) Web site at
The following topics are discussed in this preamble:
Sections 108 and 109 of the Clean Air Act (CAA) govern the establishment, review, and revision, as appropriate, of the national ambient air quality standards (NAAQS) to protect public health and welfare. The CAA requires periodic review of the air quality criteria—the science upon which the standards are based—and the standards themselves. This proposed rulemaking is being done pursuant to these statutory requirements. The schedule for this proposed rule is set out in a court order.
In 2006, the EPA completed the last review of the PM NAAQS. In that review, the EPA took three principal actions: (1) With regard to fine particles (generally referring to particles less than or equal to 2.5 micrometers (μm) in diameter, PM
In subsequent litigation, the U.S. Court of Appeals for the District of Columbia Circuit remanded the primary annual PM
This review was initiated in June 2007. Between 2007 and 2011, EPA prepared draft and final Integrated Science Assessments, Risk and Exposure Assessments, and Policy Assessments. Multiple drafts of all of these documents were subject to review by the public and peer reviewed by EPA's Clean Air Scientific Advisory Committee (CASAC). This proposed rulemaking is the next step in the review process.
In this rulemaking, the EPA proposes to make revisions to the suite of primary and secondary standards for PM to provide increased protection of public health and welfare. We also discuss EPA's current perspectives on implementation issues related to the proposed revisions to the PM NAAQS. The EPA proposes revisions to the Prevention of Significant Deterioration (PSD) permitting regulations to address the proposed changes in the primary and secondary PM NAAQS. The EPA also proposes an approach for implementing the PSD program specifically for the proposed secondary standard. The EPA is also proposing to update the Air Quality Index (AQI) for PM
With regard to the primary standards for fine particles, EPA proposes to revise the annual PM
The proposed changes to the primary annual PM
With regard to the primary standard for coarse particles, EPA proposes to retain the current 24-hour PM
With regard to the secondary PM standards, the EPA proposes to revise the suite of secondary PM standards by adding a distinct standard for PM
The proposed secondary standard is based on the long-standing science characterizing the contribution of PM, especially fine particles, to visibility impairment and on air quality analyses, with consideration also given to a reanalysis of public perception surveys regarding people's stated preferences regarding acceptable and unacceptable visual air quality. Based on this information, the Administrator proposes to conclude that the current secondary PM
To address other non-visibility welfare effects including ecological effects, effects on materials, and climate impacts, the EPA proposes to retain the current suite of secondary PM standards generally, while proposing to revise only the form of the secondary annual PM
The proposed revisions to the PM NAAQS would trigger a process under which states (and tribes, if they choose) will make recommendations to the Administrator regarding designations, identifying areas of the country that either meet or do not meet the proposed new or revised NAAQS for PM
With regard to implementation-related activities, the EPA intends to promulgate rules or develop guidance related to NAAQS implementation on a schedule that provides timely clarity to the states, tribes, and other parties responsible for NAAQS implementation. The EPA solicits comment on all implementation aspects during the public comment period for this notice and will consider these comments as it develops future rulemaking or guidance, as appropriate.
On other topics, the EPA proposes changes to the Air Quality Index (AQI) for PM
In setting the NAAQS, the EPA may not consider the costs of implementing the standards. This was confirmed by the Supreme Court in
Two sections of the CAA govern the establishment, review and revision of the NAAQS. Section 108 (42 U.S.C. 7408) directs the Administrator to identify and list certain air pollutants and then to issue air quality criteria for those pollutants. The Administrator is to list those air pollutants that in her “judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;” “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources;” and “for which * * * [the Administrator] plans to issue air quality criteria* * *” Air quality criteria are intended to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air * * *” 42 U.S.C. 7408(b). Section 109 (42 U.S.C. 7409) directs the Administrator to propose and promulgate “primary” and “secondary” NAAQS for pollutants for which air quality criteria are issued. Section 109(b)(1) defines a primary standard as one “the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.”
The requirement that primary standards provide an adequate margin of safety was intended to address uncertainties associated with inconclusive scientific and technical information available at the time of standard setting. It was also intended to provide a reasonable degree of protection against hazards that research has not yet identified.
In addressing the requirement for an adequate margin of safety, the EPA considers such factors as the nature and severity of the health effects involved, the size of sensitive population(s) at risk, and the kind and degree of the uncertainties that must be addressed. The selection of any particular approach to providing an adequate margin of safety is a policy choice left specifically to the Administrator's judgment.
In setting standards that are “requisite” to protect public health and welfare, as provided in section 109(b), EPA's task is to establish standards that are neither more nor less stringent than necessary for these purposes. In so doing, the EPA may not consider the costs of implementing the standards.
Section 109(d)(1) requires that “not later than December 31, 1980, and at 5-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under section 108 and the national ambient air quality standards * * * and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate * * * ” Section 109(d)(2) requires that an independent scientific review committee “shall complete a review of the criteria * * * and the national primary and secondary ambient air quality standards* * * and shall recommend to the Administrator any new * * * standards and revisions of existing criteria and standards as may be appropriate * * * .” Since the early 1980's, this independent review function has been performed by the Clean Air Scientific Advisory Committee (CASAC).
The EPA initially established NAAQS for PM under section 109 of the CAA in 1971. Since then, the Agency has made a number of changes to these standards to reflect continually expanding scientific information, particularly with respect to the selection of indicator
In 1971, the EPA established NAAQS for PM based on the original air quality criteria document (DHEW, 1969; 36 FR 8186, April 30, 1971). The reference method specified for determining attainment of the original standards was the high-volume sampler, which collects PM up to a nominal size of 25 to 45 μm (referred to as total suspended particles or TSP). The primary standards (measured by the indicator TSP) were 260 μg/m
In October 1979, the EPA announced the first periodic review of the criteria and NAAQS for PM, and significant revisions to the original standards were promulgated in 1987 (52 FR 24634, July 1, 1987). In that decision, the EPA changed the indicator for PM from TSP to PM
In April 1994, the EPA announced its plans for the second periodic review of the criteria and NAAQS for PM, and promulgated significant revisions to the NAAQS in 1997 (62 FR 38652, July 18, 1997). Most significantly, the EPA determined that although the PM NAAQS should continue to focus on thoracic particles (PM
Following promulgation of the revised PM NAAQS in 1997, petitions for review were filed by a large number of parties, addressing a broad range of issues. In May 1998, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an initial decision that upheld EPA's decision to establish fine particle standards, holding that “the growing empirical evidence demonstrating a relationship between fine particle pollution and adverse health effects amply justifies establishment of new fine particle standards.”
More generally, the panel held (over a strong dissent) that EPA's approach to establishing the level of the standards in 1997, both for the PM and for the ozone NAAQS promulgated on the same day, effected “an unconstitutional delegation of legislative authority.”
On EPA's petition for rehearing, the panel adhered to its position on these points.
In October 1997, the EPA published its plans for the next periodic review of the air quality criteria and NAAQS for PM (62 FR 55201, October 23, 1997). After CASAC and public review of several drafts, EPA's National Center for Environmental Assessment (NCEA) finalized the
On January 17, 2006, the EPA proposed to revise the primary and secondary NAAQS for PM (71 FR 2620) and solicited comment on a broad range of options. Proposed revisions included: (1) Revising the level of the primary 24-hour PM
On October 17, 2006, the EPA promulgated revisions to the PM NAAQS to provide increased protection of public health and welfare (71 FR 61144). With regard to the primary and secondary standards for fine particles, the EPA revised the level of the primary 24-hour PM
Following issuance of the final rule, CASAC articulated its concern that “EPA's final rule on the NAAQS for PM does not reflect several important aspects of the CASAC's advice” (Henderson et al., 2006b, p. 1). With regard to the primary PM
Several parties filed petitions for review following promulgation of the revised PM NAAQS in 2006. These petitions addressed the following issues: (1) Selecting the level of the primary annual PM
The decisions of the court with regard to these three issues are discussed further in sections III.A.2, IV.A.2, and VI.A.2 below. The EPA is responding to the court's remands as part of the current review of the PM NAAQS.
The EPA initiated the current review of the air quality criteria for PM in June 2007 with a general call for information (72 FR 35462, June 28, 2007). In July 2007, the EPA held two “kick-off” workshops on the primary and secondary PM NAAQS, respectively (72 FR 34003 to 34004, June 20, 2007).
Based in part on the workshop discussions, the EPA developed a draft Integrated Review Plan outlining the schedule, process, and key policy-relevant questions that would guide the evaluation of the air quality criteria for PM and the review of the primary and secondary PM NAAQS (U.S. EPA, 2007a). On November 30, 2007, the EPA held a consultation with CASAC on the draft Integrated Review Plan (72 FR 63177, November 8, 2007), which included the opportunity for public comment. The final Integrated Review Plan (U.S. EPA, 2008a) incorporated comments from CASAC (Henderson, 2008) and the public on the draft plan as well as input from senior Agency managers.
A major element in the process for reviewing the NAAQS is the development of an Integrated Science Assessment. This document provides a concise evaluation and integration of the policy-relevant science, including key science judgments upon with the risk and exposure assessments build. As part of the process of preparing the PM Integrated Science Assessment, NCEA hosted a peer review workshop in June 2008 on preliminary drafts of key Integrated Science Assessment chapters (73 FR 30391, May 27, 2008). The first external review draft Integrated Science Assessment (U.S. EPA, 2008b; 73 FR 77686, December 19, 2008) was reviewed by CASAC and the public at a meeting held on April 1 to 2, 2009 (74 FR 2688, February 19, 2009). Based on CASAC (Samet, 2009e) and public comments, NCEA prepared a second draft Integrated Science Assessment (U.S. EPA, 2009b; 74 FR 38185, July 31, 2009), which was reviewed by CASAC and the public at a meeting held on October 5 and 6, 2009 (74 FR 46586, September 10, 2009). Based on CASAC (Samet, 2009f) and public comments, NCEA prepared the final Integrated Science Assessment titled
Building upon the information presented in the PM Integrated Science Assessment, the EPA prepared Risk and Exposure Assessments that provide a concise presentation of the methods, key results, observations, and related uncertainties. In developing the Risk and Exposure Assessments for this PM NAAQS review, OAQPS released two planning documents:
Based on the scientific and technical information available in this review as assessed in the Integrated Science Assessment and Risk and Exposure Assessments, EPA staff prepared a Policy Assessment. The Policy Assessment is intended to help “bridge the gap” between the relevant scientific information and assessments and the judgments required of the Administrator in reaching decisions on the NAAQS (Jackson, 2009, attachment, p. 2).
The EPA developed a second draft Policy Assessment (U.S. EPA, 2010f; 75 FR 39253, July 8, 2010) based on CASAC (Samet, 2010c) and public comments on the first draft Policy Assessment. The second draft document was reviewed by CASAC at a meeting on July 26 and 27, 2010 (75 FR 32763, June 9, 2010). CASAC (Samet, 2010d) and public comments on the second draft Policy Assessment were considered by EPA staff in preparing a final Policy Assessment titled
The schedule for the rulemaking in this review is subject to a court order in a lawsuit filed in February 2012 by a group of plaintiffs who alleged that EPA had failed to perform its mandatory duty, under section 109(d)(1), to complete a review of the PM NAAQS within the period provided by statute. The court order, entered on June 2, 2012 and amended on June 6, 2012, provides that EPA will sign, for publication, a notice of proposed rulemaking concerning its review of the PM NAAQS no later than June 14, 2012.
The EPA is aware that a number of new scientific studies on the health effects of PM have been published since the mid-2009 cutoff date for inclusion in the Integrated Science Assessment. As in the last PM NAAQS review, the EPA intends to conduct a provisional review and assessment of any significant new studies published since the close of the Integrated Science Assessment, including studies that may be submitted during the public comment period on this proposed rule in order to ensure that, before making a final decision, the Administrator is fully aware of the new science that has developed since 2009. In this provisional assessment, the EPA will examine these new studies in light of the literature evaluated in the Integrated Science Assessment. This provisional assessment and a summary of the key conclusions will be placed in the rulemaking docket.
Today's action presents the Administrator's proposed decisions on the current PM standards. Throughout this preamble there are a number of conclusions, findings, and determinations that are part of the rationales for the decisions proposed by the Administrator. They are referred to throughout as “provisional” conclusions, findings, and determinations to reflect that they are not intended to be final or conclusive but rather proposals for public comment. The EPA invites general, specific, and technical comments on all issues involved with this proposal, including all such proposed decisions and provisional conclusions, findings, and determinations.
States are primarily responsible for ensuring attainment and maintenance of ambient air quality standards once the EPA has established them. Under section 110 of the CAA, and related provisions, states are to submit, for EPA's approval, state implementation plans (SIPs) that provide for the attainment and maintenance of such standards through control programs directed to sources of the pollutants involved. The states, in conjunction with the EPA, also administer the PSD program (CAA sections 160 to 169). In addition, Federal programs provide for nationwide reductions in emissions of PM and other air pollutants through the Federal motor vehicle and motor vehicle fuel control program under title II of the Act (CAA sections 202 to 250) which involves controls for emissions from mobile sources and controls for the fuels used by these sources, and new source performance standards for stationary sources under section 111 of the CAA.
Currently, there are 55 areas in the U.S. (with a population of more than 100 million) that are designated as nonattainment for either the annual or 24-hour PM
This section presents the rationale for the Administrator's proposed decision to revise the level and form of the existing primary annual PM
In developing this proposal, the Administrator recognizes that the CAA requires her to reach a public health policy judgment as to what standards would be requisite to protect public health with an adequate margin of safety, based on scientific evidence and technical assessments that have inherent uncertainties and limitations. This judgment requires making reasoned decisions as to what weight to place on various types of evidence and assessments, and on the related uncertainties and limitations. Thus, in selecting standards to propose, and subsequently in selecting the final standards, the Administrator is seeking not only to prevent fine particle concentrations that have been demonstrated to be harmful but also to prevent lower fine particle concentrations that may pose an unacceptable risk of harm, even if the risk is not precisely identified as to nature or degree.
As discussed below, a substantial amount of new research has been conducted since the close of the science assessment in the last review of the PM
The newly available research studies as well as the earlier body of scientific evidence presented and assessed in the Integrated Science Assessment have undergone intensive scrutiny through multiple layers of peer review and opportunities for public review and comment. In developing this proposed rule, the EPA has drawn upon an integrative synthesis of the entire body of evidence between exposure to ambient fine particles and a broad range of health endpoints (U.S. EPA, 2009a, Chapters 2, 4, 5, 6, 7, and 8) focusing on those health endpoints for which the Integrated Science Assessment concludes that there is a
The EPA has also drawn upon a quantitative risk assessment based upon the scientific evidence described and assessed in the Integrated Science Assessment. These analyses, discussed in the Risk Assessment (U.S. EPA, 2010a) and Policy Assessment (U.S. EPA, 2011a, chapter 2), have also undergone intensive scrutiny through multiple layers of peer review and opportunities for public review and comment.
Although important uncertainties remain in the qualitative and quantitative characterizations of health effects attributable to ambient fine particles, the review of this information has been extensive and deliberate. This intensive evaluation of the scientific evidence and quantitative assessments has provided an adequate basis for regulatory decision making at this time.
This section describes the integrative synthesis of the evidence and technical information contained in the Integrated Science Assessment, the Risk Assessment, and the Policy Assessment with regard to the current and potential alternative standards. The EPA notes that the final decision for retaining or revising the current primary PM
In presenting the rationale for the proposed revisions of the primary PM
There are currently two primary PM
The past and current approaches for reviewing the primary PM
The general approach used to translate scientific information into standards used in the previous reviews focused on consideration of alternative standard levels that were somewhat below the long-term mean PM
In setting primary PM
The EPA considered the epidemiological evidence and data on air quality relationships to set an annual PM
In 2006, the EPA used a different evidence-based approach to assess the appropriateness of the levels of the 24-hour and annual PM
As noted above in section II.B.2, several parties filed petitions for review in the U.S. Court of Appeals for the District of Columbia Circuit following promulgation of the revised PM NAAQS in 2006. These petitions challenged several aspects of the final rule including the level of the primary PM
On judicial review, the D.C. Circuit remanded the primary annual PM
With respect to protection from long-term exposure to fine particles, the court found that the EPA failed to adequately explain how the primary annual PM
EPA was unreasonably confident that, even though it relied solely upon long-term mortality studies, the revised standard would provide an adequate margin of safety with respect to morbidity among children. Notably absent from the final rule, moreover, is any indication of how the standard will adequately reduce risk to the elderly or to those with certain heart or lung diseases despite (a) the EPA's determination in its proposed rule that those subpopulations are at greater risk from exposure to fine particles and (b) the evidence in the record supporting that determination.
In addition, the court held that the EPA had not adequately explained its decision to base the level of the annual standard essentially exclusively on the results of long-term studies, and the 24-hour standard level essentially exclusively on short-term studies. See 559 F. 3d at 522 (“[e]ven if the long-term studies available today are useful for setting an annual standard, * * *, it is not clear why the EPA no longer believes it useful to look as well to short-term studies in order to design the suite of standards that will most effectively reduce the risks associated with short-term exposure”); see also id. at 523-24 (holding that the EPA had not adequately explained why a standard based on levels in short-term exposure studies alone provided appropriate protection from health effects associated with short-term PM
In remanding the primary annual PM
This review is based on an assessment of a much expanded body of scientific evidence, more extensive air quality data and analyses, and a more comprehensive quantitative risk assessment relative to the information available in past reviews, as presented and assessed in the Integrated Science Assessment and Risk Assessment and discussed in the Policy Assessment. As a result, EPA's general approach to reaching conclusions about the adequacy of the current suite of PM
The EPA's general approach takes into account both evidence-based and risk-based considerations, and the uncertainties related to both types of information, as well as advice from CASAC (Samet, 2010c,d) and public comments on the first and second draft Policy Assessments (U.S. EPA, 2010c,f). In so doing, EPA staff developed a final Policy Assessment (U.S. EPA, 2011a) which provides as broad an array of policy options as is supportable by the available information, recognizing that the selection of a specific approach to reaching final decisions on the primary PM
The Policy Assessment concludes it is most appropriate to consider the protection against PM
In considering the combined effect of annual and 24-hour standards, the Policy Assessment recognizes that changes in PM
In considering the currently available evidence, the Policy Assessment
Furthermore, a policy approach that focuses on reducing peak exposures would most likely result in more uneven public health protection across the U.S. by either providing inadequate protection in some areas or overprotecting in other areas (U.S. EPA, 2010a, section 5.2.3). This is because reductions based on control of peak days are less likely to control the bulk of the air quality distribution, as discussed above.
The Policy Assessment concludes that a policy goal of setting a “generally controlling” annual standard that will lower a wide range of ambient 24-hour PM
The Policy Assessment also concludes, however, that an annual standard intended to serve as the primary means for providing protection from effects associated with both long- and short-term PM
The Policy Assessment's consideration of the protection afforded by the current and alternative suites of standards focuses on PM
In translating information from epidemiological studies into the basis for reaching staff conclusions on the adequacy of the current suite of standards, the Policy Assessment considers a number of factors (U.S. EPA, 2011a, section 2.2). As an initial matter, the Policy Assessment considers the extent to which the currently available evidence and related uncertainties strengthens or calls into question conclusions from the last review regarding associations between fine particle exposures and health effects. The Policy Assessment also considers evidence on at-risk populations and potential impacts on such populations. Further, the Policy Assessment explores the extent to which PM
In translating information from epidemiological studies into the basis for reaching staff conclusions on alternative standard levels for consideration (U.S. EPA, 2011a, sections 2.1.3 and 2.3.4), the Policy Assessment first recognizes the absence of discernible thresholds in the concentration-response functions from long- and short-term PM
In reaching staff conclusions on the range of annual standard levels that is appropriate to consider, the Policy Assessment focuses on identifying an annual standard that provides requisite protection from effects associated with both long- and short-term exposures. In so doing, the Policy Assessment explores different approaches for characterizing the range of PM
The approach that most directly addresses this issue considers studies that present confidence intervals around concentration-response relationships, and in particular, analyses that average across multiple concentration-response models rather than considering a single concentration-response model.
Further, the Policy Assessment explores other approaches that consider different statistical metrics from epidemiological studies. The Policy Assessment first takes into account the general approach used in previous PM reviews which focused on consideration of alternative standard levels that were somewhat below the long-term mean PM
In extending this approach, the Policy Assessment also considers information beyond a single statistical metric of PM
In considering distributional statistics from epidemiological studies, the final Policy Assessment focused on two types of population-level metrics that CASAC advices are most useful to consider in identifying the PM
The Policy Assessment recognizes that an approach considering analyses of confidence intervals around concentration-response functions is intrinsically related to an approach that considers different distributional statistics. Both of these approaches could be employed to identify the range of PM
In applying these approaches, the Policy Assessment considers PM
In reaching staff conclusions on alternative standard levels that are appropriate to consider, the Policy Assessment also includes a broader consideration of the uncertainties related to the concentration-response relationships from multi-city, long- and short-term exposure studies. Most notably, these uncertainties relate to our currently limited understanding of the heterogeneity of relative risk estimates in areas across the country. This heterogeneity may be attributed, in part, to the potential for different components within the mix of ambient fine particles to differentially contribute to health effects observed in the studies and to exposure-related factors (U.S. EPA, 2011a, pp. 2-25 to 2-26). The limitations and uncertainties associated with the currently available scientific evidence, including the availability of fewer studies toward the lower range of alternative annual standard levels being considered in this proposal, are further discussed in section III.B.2 below.
The Policy Assessment recognizes that the level of protection afforded by the NAAQS relies both on the level and the form of the standard. The Policy Assessment concludes that a policy approach that uses data based on composite monitor distributions to identify alternative standard levels, and then compares those levels to concentrations at maximum monitors to determine if an area meets a given standard, inherently has the potential to build in some margin of safety (U.S. EPA, 2011a, p. 2-14).
In reaching staff conclusions on alternative 24-hour standard levels that are appropriate to consider for setting a 24-hour standard intended to supplement the protection afforded by a generally controlling annual standard, the Policy Assessment considered currently available short-term PM
Beyond these evidence-based considerations, the Policy Assessment also considers the quantitative risk estimates and the key observations presented in the Risk Assessment. This assessment includes an evaluation of 15 urban case study areas and estimated risk associated with a number of health endpoints associated with long- and short-term PM
The Policy Assessment conclusions related to the primary PM
This section outlines key information contained in the Integrated Science Assessment (Chapters 2, 4, 5, 6, 7, and 8) and the Policy Assessment (Chapter 2) related to health effects associated with fine particle exposures. As was true in the last review, evidence from epidemiologic studies plays a key role in the Integrated Science Assessment's evaluation of the scientific evidence. The following sections discuss available information on the health effects associated with exposures to PM
In considering the strength of the associations between long- and short-term exposures to PM
In looking across the extensive new scientific evidence available in this review, our overall understanding of health effects associated with fine particle exposures has been greatly expanded (U.S. EPA, 2009a, sections 2.3.1 and 2.3.2). The currently available evidence is stronger in comparison to evidence available in the last review because of its breadth and the substantiation of previously observed health effects. A number of large multi-city epidemiological studies have been conducted throughout the U.S., including extended analyses of studies that were important to inform decision-making in the last review. These studies have reported consistent increases in morbidity and/or mortality related to ambient PM
With regard to causal inferences described in the Integrated Science Assessment, the Policy Assessment notes that since the last review, the Agency has developed a more formal framework for reaching causal determinations that draws upon the assessment and integration of evidence from across epidemiological, controlled human exposure, and toxicological studies, and the related uncertainties, that ultimately influence our understanding of the evidence (U.S. EPA, 2011a, p. 2-18; U.S. EPA, 2009a, section 1.5). This framework employs a five-level hierarchy that classifies the overall weight of evidence and causality using the following categorizations: causal relationship, likely to be a causal relationship, suggestive of a causal relationship, inadequate to infer a causal relationship, and not likely to be a causal relationship (U.S. EPA, 2009a, Table 1-3).
Using this causal framework, the Integrated Science Assessment concludes that the collective evidence is largely consistent with past studies and substantially strengthens what was known about fine particles in the last review to reach the conclusion that a causal relationship exists between both long- and short-term exposures to PM
With regard to mortality, the Integrated Science Assessment concludes that newly available evidence significantly strengthens the link between long-term exposure to PM
The strength of the causal relationship between long-term PM
With regard to cardiovascular effects, several new studies have examined the association between cardiovascular effects and long-term PM
With regard to cardiovascular-related morbidity associated with long-term PM
With regard to respiratory effects, the Integrated Science Assessment concludes that extended analyses of studies available in the last review as well as new epidemiological studies conducted in the U.S. and abroad provide stronger evidence of respiratory-related morbidity associated with long-term PM
Toxicological studies provide coherence and biological plausibility for the respiratory effects observed in epidemiological studies (U.S. EPA, 2009a, p. 7-42). For example, pre- and postnatal exposure to ambient levels of urban particles has been found to affect lung development in an animal model (U.S. EPA, 2009a, section 7.3.2.2; p. 7-43). This finding is important because impaired lung development is one mechanism by which PM exposure may decrease lung function growth in children (U.S. EPA, 2009a, p. 2-12; section 7.3).
With regard to respiratory-related mortality associated with long-term PM
Beyond effects considered to have causal or likely causal relationships with long-term PM
With regard to cancer, mutagenic and genotoxic effects, “[m]ultiple epidemiologic studies have shown a consistent positive association between PM
In considering effects associated with short-term PM
With regard to mortality, new U.S. and Canadian multi-city and single-city PM
With regard to cardiovascular effects, new multi-city as well as single-city short-term PM
In focusing on respiratory effects, the strongest evidence from short-term PM
In considering the extent to which newly available scientific evidence strengthens or calls into question evidence of associations identified in the last review between ambient fine particle exposures and health effects, the Policy Assessment recognizes that much progress has been made in assessing some key uncertainties related to our understanding of health effects associated with long- and short-term exposure to PM
With respect to understanding the nature and magnitude of PM
In considering the relationships between PM composition and health effects, the ISA notes that the scientific evidence continues to evolve and concludes that, while many constituents of PM can be linked with differing health effects, the evidence is not yet sufficient to allow differentiation of those constituents or sources that may be more closely related to specific health outcomes (U.S. EPA, 2009a, p. 2-17).
Exposure measurement error is also an important source of uncertainty (U.S. EPA, 2009a, section 3.8.6). Variability in the associations observed across PM
In addition, where PM
In identifying population groups or lifestages at greatest risk for health risk from a specific pollutant, the terms susceptibility, vulnerability, sensitivity, and at-risk are commonly employed. The definition for these terms sometimes varies, but in most instances “susceptibility” refers to biological or intrinsic factors (e.g., lifestage, gender, preexisting disease/conditions) while “vulnerability” refers to nonbiological or extrinsic factors (e.g., socioeconomic factors). However, factors included in the terms “susceptibility” and “vulnerability” are intertwined and are difficult to distinguish. In the Integrated Science Assessment, the term “susceptibility” has been used broadly to recognize populations that have a greater likelihood of experiencing effects related to ambient PM exposure
As summarized below and presented in more detail in chapter 8 of the Integrated Science Assessment and section 2.2.1 of the Policy Assessment, the currently available epidemiological and controlled human exposure evidence expands our understanding of previously identified at-risk populations (i.e., children, older adults, and individuals with pre-existing heart and lung disease) and supports the identification of additional at-risk populations (e.g., persons with lower socioeconomic status, genetic differences) (U.S. EPA, 2009a, section 2.4.1, Table 8-2). In addition, toxicological studies provide underlying support for the biological mechanisms that potentially lead to increased susceptibility to PM-related health effects (U.S. EPA, 2009a, sections 2.4.1 and 8.1.8).
Two different lifestages have been associated with increased risk to PM-related health effects: childhood (i.e., less than 18 years of age) and older adulthood (i.e., 65 years of age and older). Childhood represents a lifestage where susceptibility to PM exposures may be related to the following observations: children spend more time outdoors; children have greater activity levels than adults; children have exposures resulting in higher doses per body weight and lung surface area; and the developing lung is prone to damage, including irreversible effects, from environmental pollutants as it continues to develop through adolescence (U.S. EPA, 2009a, section 8.1.1.2). Older adults represent a lifestage where susceptibility to PM-associated health effects may be related to the higher prevalence of pre-existing cardiovascular and respiratory diseases found in this age group compared to younger age groups as well as the gradual decline in physiological processes that occur as part of the aging process (U.S. EPA, 2009a, section 8.1.1.1). In addition, accumulating evidence suggests that the developing fetus may also represent an additional lifestage that is at greater risk to PM exposures (U.S. EPA, 2009a, sections 2.3.1.2 and 7.4).
With regard to mortality, recent epidemiological studies have continued to find that older adults are at greater risk of all-cause (non-accidental) mortality associated with short-term exposure to both PM
With regard to morbidity effects, currently available studies provide evidence that older adults have heightened responses, especially for cardiovascular-related effects, and children have heightened responses for respiratory-related effects (U.S. EPA, 2009a, p. 2-23). In considering respiratory-related effects in children associated with long-term PM exposures, the Policy Assessment recognizes that our understanding of effects on lung development has been strengthened based on newly available evidence that is consistent and coherent across different study designs, locations, and research groups (U.S. EPA, 2011a, p. 2-28). The strongest evidence comes from the extended follow-up for the Southern California Children's Health Study which includes several new studies that report positive associations between long-term exposure to PM
A number of health conditions have been found to put individuals at greater risk for adverse effects following exposure to PM. The currently available evidence confirms and strengthens evidence in the last review that individuals with underlying cardiovascular and respiratory diseases are more susceptible to PM exposures (U.S. EPA, 2009a, section 8.1.6; U.S. EPA, 2011a, section 2.2.1). There is also emerging evidence that people with diabetes, who are at risk for cardiovascular disease, as well as obese individuals, may have increased susceptibility to PM exposures (U.S. EPA, 2009a, section 8.1.6.4). As discussed in section 8.1.6 of the Integrated Science Assessment, this body of evidence includes findings from epidemiological and human clinical studies that associations with mortality or morbidity are greater in those with pre-existing conditions, and also includes evidence from toxicological studies using animal models of cardiopulmonary disease.
Stronger evidence is available in this review than the last indicating that people from lower socioeconomic strata are an at-risk population relative to PM exposures (U.S. EPA, 2009a, section 8.1.7; U.S. EPA, 2011a, section 2.2.1). Persons with lower socioeconomic status (SES)
Investigation of potential genetic susceptibility has provided evidence that individuals with specific genetic differences are more susceptible to PM-related effects (U.S. EPA, 2009a, pp. 8-7 to 8-9). More research is needed to better understand the relationship between genetic effects and potential susceptibility to PM-related effects (U.S. EPA, 2011a, p. 2-109).
In summary, there are several at-risk populations that may be especially susceptible or vulnerable to PM-related effects. These groups include those with preexisting heart and lung diseases, specific genetic differences, and lower socioeconomic status as well as the lifestages of childhood and older adulthood. Evidence for PM-related effects in these at-risk populations has expanded and is stronger than previously observed. There is emerging, though still limited, evidence for additional potentially at-risk populations, such as those with diabetes, people who are obese, pregnant women, and the developing fetus. The available evidence does not generally allow distinctions to be drawn between the PM indicators in terms of whether populations are more at-risk to a particular size fraction (i.e., PM
The population potentially affected by PM
With regard to at-risk populations in the United States, approximately 7 percent of adults (approximately 16 million adults) and 9 percent of children (approximately 7 million children) have asthma (U.S. EPA 2009a, Table 8-3; CDC, 2008
In this review, the quantitative risk assessment builds on the approach used and lessons learned in the last review and focuses on improving the characterization of the overall confidence in the risk estimates, including related uncertainties, by incorporating a number of enhancements, in terms of both the methods and data used in the analyses. The goals of this quantitative risk assessment are largely the same as those articulated in the risk assessment conducted for the last review. These goals include: (1) To provide estimates of the potential magnitude of premature mortality and/or selected morbidity effects in the population associated with recent ambient level of PM
The risk assessment conducted for this review is more fully described and presented in the Risk Assessment (U.S. EPA, 2010a) and summarized in detail in the Policy Assessment (U.S. EPA, 2011a, sections 2.2.2. and 2.3.4.2). The scope and methodology for this risk assessment were developed over the last few years with considerable input from CASAC and the public as described in section I.B.3.
Based on a review of the evidence presented and assessed in the Integrated Science Assessment and criteria for selecting specific health effect endpoints discussed in the Risk Assessment (U.S. EPA, 2010a, section 3.3.1), the following broad categories of health endpoints were included in the quantitative risk assessment: (1) All-cause, ischemic heart disease-related, cardiopulmonary-related, and lung cancer-related mortality associated with long-term PM
In order to estimate the incidence of a particular health effect associated with recent ambient conditions in a specific urban study area attributable to PM
The Risk Assessment includes a core set of risk estimates supplemented by an alternative set of risk results generated using single-factor and multi-factor sensitivity analyses. The core set of risk estimates was developed using the combination of modeling elements and input data sets identified in the Risk Assessment as having higher confidence relative to inputs used in the sensitivity analyses. The results of the sensitivity analyses provide information to evaluate and rank the potential impacts of key sources of uncertainty on the core risk estimates (U.S. EPA, 2010a, sections 3.5 and 4.3, Table 4-3). In addition, the sensitivity analyses represent a set of reasonable alternatives to the core set of risk estimates that fall within an overall set of plausible risk estimates surrounding the core estimates (U.S. EPA, 2010a, section 4.3.2).
Recent air quality was characterized for the 15 urban study areas based on 24-hour PM
The peak-to-mean ratio of ambient PM
The concentration-response functions used in the risk assessment were based on findings from epidemiological studies that have relied on fixed-site, population-oriented, ambient monitors as a surrogate for actual ambient PM
In modeling risk associated with long- and short-term PM
With regard to modeling risks associated with long-term PM
As discussed in section III.B.3, persons of lower socioeconomic status have been identified as an at-risk population. The ACS study cohort does not provide representative coverage for persons of lower-socioeconomic status and, thus, the Risk Assessment concludes that using the concentration-response functions from this study may result in risk estimates that are biased low (U.S. EPA, 2010a, p. 5-7). Therefore, concentration-response functions from a reanalysis of the Harvard Six Cities study (Krewski et al., 2000) were used in a sensitivity analysis to better support generalizing the results of the risk assessment across the broader national population.
While being mindful that the use of concentration-response functions from Krewski et al. (2009) introduces potential for low bias in the core risk estimates, the Policy Assessment also recognizes many strengths of this study and reasons for its continued use for generating the core risk estimates, including: consideration of a large number of metropolitan statistical areas, inclusion of two time periods for the air quality data which allowed us to consider different exposure windows, and analysis of a wide range of concentration-response function models. Therefore, the Risk Assessment concludes that concentration-response functions obtained from this study had the greatest overall support and were appropriate to incorporate in the core risk model (U.S. EPA, 2010a, p. 3-38).
In the core analysis, for modeling health endpoints associated with long-term exposure, the Risk Assessment concluded that modeling risks down to policy-relevant background would require substantial extrapolation of the estimated concentration-response functions below the range of the data on which they were estimated (i.e., the lowest measured levels reported in the epidemiological studies were substantially above policy-relevant background). Therefore, the Risk Assessment concluded it was most appropriate in the core analysis to estimate risk only down to the lowest measured level to avoid introducing additional uncertainty into the analysis (U.S. EPA, 2010a, 3-1 to 3-3).
With regard to modeling risks associated with short-term PM
For modeling health endpoints associated with short-term PM
To estimate the change in incidence of a health endpoint associated with a given change in PM
An important component of a population health risk assessment is the characterization of both uncertainty and variability.
The Risk Assessment considers key sources of variability that can impact the nature and magnitude of risks associated with simulating just meeting current and alternative standard levels across the urban study areas (U.S. EPA, 2010a, section 3.5.2). These sources of variability include those that contribute to differences in risk across urban study areas, but do not directly affect the degree of risk reduction associated with the simulation of just meeting current or alternative standard levels (e.g., differences in baseline incidence rates, demographics and population behavior). The Risk Assessment also focuses on factors that not only introduce variability into risk estimates across study areas, but also play an important role in determining the magnitude of risk reductions upon simulation of just meeting current or alternative standard levels (e.g., peak-to-mean ratios of ambient PM
Single and multi-factor sensitivity analyses were combined with a qualitative analysis to assess the impact of potential sources of uncertainty on the core risk estimates (U.S. EPA, 2010a, sections 3.5.3 and 3.5.4). The quantitative sensitivity analyses informed our understanding of sources of uncertainty that may have a moderate to large impact on the core risk estimates including: (1) Characterizing intra-urban population exposure in the context of epidemiology studies linking PM
With respect to the long-term exposure-related mortality risk
Beyond characterizing uncertainty and variability, a number of design elements were included in the risk assessment to increase the overall confidence in the risk estimates generated for the 15 urban study areas (U.S. EPA, 2011a, pp. 2-38 to 2-41). These elements included: (1) Use of a deliberative process for specifying components of the risk model that reflects consideration of the latest research on PM
As discussed below, three factors figure prominently in the interpretation of the risk estimates associated with simulating just meeting the current and alternative suites of standards, including: (1) The importance of changes in annual mean PM
The magnitude of both long- and short-term exposure-related risk estimated to remain upon just meeting the current suite of standards is strongly associated with the simulated change in annual mean PM
In estimating PM
(1)
(2)
(3)
(4)
(5)
Reductions in risk associated with simulating air quality to just meet alternative standard levels were also estimated in this review (U.S. EPA, 2010a, sections 4.2.2, 5.2.2, and 5.2.3; U.S. EPA, 2011a, section 2.3.4.2). The estimated percent of risk reductions are depicted graphically in the Policy Assessment (US 2011a, Figures 2-11 and 2-12), showing patterns of estimated risk reductions associated with alternative suites of standards.
With regard to characterizing estimates of PM
The variability in risk is a consequence of the substantial differences in the annual mean PM
Based on consideration of the composite monitor annual mean PM
The results of simulating alternative suites of PM
Based on the consideration of both the qualitative and quantitative assessments of uncertainty, the Risk Assessment concludes it is unlikely that the estimated risks are over-stated, particularly for premature mortality related to long-term PM
In considering the set of quantitative risk estimates and related uncertainties and limitations related to long- and short-term PM
The initial issue to be addressed in the current review of the primary PM
In light of the health evidence described above, specifically with regard to factors contributing to greater susceptibility to health effects associated with ambient PM
With regard to associations observed in long-term PM
New cohort studies provide additional evidence of mortality associated with air quality distributions that are generally lower than those reported in the ACS and Harvard Six Cities studies, with effect estimates that were similar or greater in magnitude (U.S. EPA, 2011a, pp. 2-32 to 2-33). The WHI study reported positive and most often statistically significant associations between long-term PM
With respect to respiratory morbidity effects associated with long-term PM
In also considering health effects for which the Integrated Science Assessment concludes evidence is suggestive of a causal relationship, the Policy Assessment notes a limited number of birth outcome studies that reported positive and statistically significant effects related to aggregate long-term mean PM
Collectively, the Policy Assessment concludes that currently available evidence provides support for associations between long-term PM
In light of the mixed findings reported in single-city, short-term exposure studies, the Policy Assessment places comparatively greater weight on the results from multi-city studies in considering the adequacy of the current suite of standards (U.S. EPA, 2011a, pp. 2-34 to 2-35). With regard to associations reported in short-term PM
With regard to cardiovascular and respiratory morbidity effects, in the first analysis of the MCAPS cohort conducted by Dominici et al. (2006a) across 204 U.S. counties, investigators reported a statistically significant association with hospitalizations for cardiovascular and respiratory diseases and short-term PM
Collectively, the Policy Assessment concludes that the findings from short-term PM
In evaluating the currently available scientific evidence, as summarized in section III.B, the Policy Assessment first concludes that there is stronger and more consistent and coherent support for associations between long- and short-term PM
In reviewing this information, the Policy Assessment recognizes that important limitations and uncertainties associated with this expanded body of scientific evidence, noted above in section III.B.2, need to be carefully considered in determining the weight to be placed on the body of studies available in this review. Taking these limitations and uncertainties into consideration, the Policy Assessment concludes that the currently available evidence clearly calls into question whether the current suite of primary PM
In addition to evidence-based consideration, the Policy Assessment also considers the extent to which health risks estimated to occur upon simulating just meeting the current PM
In considering the health risks estimated to remain upon simulation of just meeting the current suite of standards and considering both the qualitative and quantitative assessment of uncertainty completed as part of the assessment, the Policy Assessment concludes these risks are important from a public health standpoint (U.S. EPA, 2011a, p. 2-47). This conclusion reflects consideration of both the severity and the magnitude of the effects. For example, the risk assessment indicates the possibility that premature deaths related to ischemic heart disease associated with long-term PM
In considering the risks estimated to occur upon simulating just meeting the current PM
CASAC, based on their review of drafts of the Integrated Science Assessment, the Risk Assessment, and the Policy Assessment, has provided an array of advice both with regard to interpreting the scientific evidence and quantitative risk assessment, as well as with regard to consideration of the adequacy of the current PM
With regard to the integration of evidence-based and risk-based considerations, CASAC concurs with EPA's conclusion that the new data strengthens the evidence available on associations previously considered in the last round of the assessment of the PM
In considering the adequacy of the current suite of PM
Based on her consideration of these conclusions, as well as consideration of CASAC's conclusion that the evidence and risk assessment clearly call into question the adequacy of the public health protection provided by the current PM
In initially setting standards for fine particles in 1997, the EPA concluded it was appropriate to control fine particles as a group, rather than singling out any particular component or class of fine particles. The EPA noted that community health studies had found significant associations between various indicators of fine particles, and that health effects in a large number of areas had significant mass contributions of differing components or sources of fine particles. In addition, a number of toxicological and controlled human exposure studies had reported health effects associations with high concentrations of numerous fine particle components. It was also not possible to rule out any component within the mix of fine particles as not contributing to the fine particle effects found in the epidemiologic studies (62 FR 38667, July 18, 1977). In establishing a size-based indicator in 1977 to distinguish fine particles from particles in the coarse mode, the EPA noted that the available epidemiological studies of fine particles were based largely on PM
In this current review, the same considerations continue to apply for selection of an appropriate indicator for fine particles. As an initial matter, the Policy Assessment recognizes that the available epidemiological studies linking mortality and morbidity effects with long- and short-term exposures to fine particles continue to be largely indexed by PM
The Policy Assessment also considers the expanded body of evidence available in this review to consider whether there is sufficient evidence to support a separate standard for ultrafine particles
A number of studies available in this review have evaluated potential health effects associated with short-term exposures to ultrafine particles. As noted in the Integrated Science Assessment, the enormous number and larger, collective surface area of ultrafine particles are important considerations for focusing on this particle size fraction in assessing potential public health impacts (U.S. EPA, 2009a, p. 6-83). Per unit mass, ultrafine particles may have more opportunity to interact with cell surfaces due to their greater surface area and their greater particle number compared with larger particles (U.S. EPA, 2009a, p. 5-3). Greater surface area also increases the potential for soluble components (e.g., transition metals, organics) to adsorb to ultrafine particles and potentially cross cell membranes and epithelial barriers (U.S. EPA, 2009a, p. 6-83). In addition, evidence available in this review suggests that the ability of particles to enhance allergic sensitization is associated more strongly with particle number and surface area than with particle mass (U.S. EPA, 2009a, p. 6-127).
New evidence, primarily from controlled human exposure and toxicological studies, expands our understanding of cardiovascular and respiratory effects related to short-term ultrafine particle exposures. However, the Policy Assessment concludes this evidence is still very limited and largely focused on exposure to diesel exhaust, for which the Integrated Science Assessment concludes it is unclear if the effects observed are due to ultrafine particles, larger particles within the PM
The Policy Assessment recognizes that there are relatively few epidemiological studies that have examined potential cardiovascular and respiratory effects associated with short-term exposures to ultrafine particles (U.S. EPA, 2011a, p. 2-51). These studies have reported inconsistent and mixed results (U.S. EPA, 2009a, section 2.3.5).
Collectively, in considering the body of scientific evidence available in this review, the Integrated Science Assessment concludes that the currently available evidence is suggestive of a causal relationship between short-term exposures to ultrafine particles and cardiovascular and respiratory effects. Furthermore, the Integrated Science Assessment concludes that evidence is inadequate to infer a causal relationship between short-term exposure to ultrafine particles and mortality as well as long-term exposure to ultrafine particles and all outcomes evaluated (U.S. EPA, 2009a, sections 2.3.5, 6.2.12.3, 6.3.10.3, 6.5.3.3, 7.2.11.3, 7.3.9, 7.4.3.3, 7.5.4.3, and 7.6.5.3; Table 2-6).
With respect to our understanding of ambient ultrafine particle concentrations, at present, there is no national network of ultrafine particle samplers; thus, only episodic and/or site-specific data sets exist (U.S. EPA, 2009a, p. 2-2). Therefore, the Policy Assessment recognizes a national characterization of concentrations, temporal and spatial patterns, and trends is not possible at this time, and the availability of ambient ultrafine measurements to support health studies is extremely limited (U.S. EPA, 2011a, p. 2-51). In general, measurements of ultrafine particles are highly dependent on monitor location and, therefore, more subject to exposure error than accumulation mode particles (U.S. EPA, 2009a, p. 2-22). Furthermore, the number of ultrafine particles generally decreases sharply downwind from sources, as ultrafine particles may grow into the accumulation mode by coagulation or condensation (U.S. EPA, 2009a, p. 3-89). Limited studies of ambient ultrafine particle measurements suggest these particles exhibit a high degree of spatial and temporal heterogeneity driven primarily by differences in nearby source characteristics (U.S. EPA, 2009a, p. 3-84). Internal combustion engines and, therefore, roadways are a notable source of ultrafine particles, so
In considering both the currently available health effects evidence and the air quality data, the Policy Assessment concludes that this information is still too limited to provide support for consideration of a distinct PM standard for ultrafine particles (U.S. EPA, 2011a, p. 2-52).
In addressing the issue of particle composition, the Integrated Science Assessment concludes that, “[f]rom a mechanistic perspective, it is highly plausible that the chemical composition of PM would be a better predictor of health effects than particle size” (U.S. EPA, 2009a, p. 6-202). Heterogeneity of ambient concentrations of PM
With respect to the availability of ambient measurement data for fine particle components in this review, there are now more extensive ambient PM
The currently available epidemiological, toxicological, and controlled human exposure studies evaluated in the Integrated Science Assessment on the health effects associated with ambient PM
The Policy Assessment recognizes that several new multi-city studies evaluating short-term exposures to fine particle constituents are now available. These studies continue to show an association between mortality and cardiovascular and/or respiratory morbidity effects and short-term exposures to various PM
Limited evidence is available to evaluate the health effects associated with long-term exposures to PM
With respect to source categories of fine particles associated with a range of health endpoints, the Integrated Science Assessment reports that the currently available evidence suggests associations between cardiovascular effects and a number of specific PM
Recent studies have shown that source apportionment methods have the potential to add useful insights into which sources and/or PM constituents may contribute to different health effects. Of particular interest are several epidemiological studies that compared source apportionment methods and reported consistent results across research groups (U.S. EPA, 2009a, p. 6-211; Hopke et al., 2006; Ito et al., 2006; Mar et al., 2006; Thurston et al., 2005). These studies reported associations between total mortality and secondary sulfate in two cities for two different lag times. The sulfate effect was stronger for total mortality in Washington, DC and for cardiovascular-related morality in Phoenix (U.S. EPA, 2009a, p. 6-204). These studies also found some evidence for associations with mortality and a number of source categories (e.g., biomass/wood combustion, traffic, copper smelter, coal combustion, sea salt) at various lag times (U.S. EPA, 2009a, p. 6-204). Sarnat et al. (2008) compared three different source apportionment methods and reported consistent associations between emergency department visits for cardiovascular diseases with mobile sources and biomass combustion as well as increased respiratory-related emergency department visits associated
Collectively, in considering the currently available evidence for health effects associated with specific PM
The CASAC concluded that it is appropriate to consider retaining PM
Consistent with the staff conclusions presented in the Policy Assessment and CASAC advice, the Administrator proposes to retain PM
In 1997, the EPA initially set both an annual standard, to provide protection from health effects associated with both long- and short-term exposures to PM
The overwhelming majority of studies conducted since the last review continue to utilize annual (or multi-year) and 24-hour averaging times, reflecting the averaging times of the current PM
In considering whether the information available in this review supports consideration of different averaging times for PM
With regard to respiratory effects associated with sub-daily PM
Collectively, the Policy Assessment concludes that this information, when viewed as a whole, is too unclear, with respect to the indicator, averaging time and health outcome, to serve as a basis for consideration of establishing a primary PM
With regard to health effects associated with PM
Overall, the Policy Assessment observes that there are few studies presently available to deduce a general
Based on the above considerations, the Policy Assessment concludes that the currently available information provides strong support for consideration of retaining current annual and 24-hour averaging timers but does not provide support for considering alternative averaging times (U.S. EPA, 2011a, p. 2-58). In addition, CASAC considers it appropriate to retain the current annual and 24-hour averaging times for the primary PM
The “form” of a standard defines the air quality statistic that is to be compared to the level of the standard in determining whether an area attains the standard. In this review, we consider whether currently available information supports consideration of alternative forms for the annual or 24-hour PM
In 1997, the EPA established the form of the annual PM
In the last review, the EPA tightened the criteria for use of spatial averaging to provide increased protection for vulnerable populations exposed to PM
In this review, as discussed in section III.B.3, there now exist more health data such that the Integrated Science Assessment has identified persons from lower socioeconomic strata as an at-risk population (U.S. EPA, 2009a, section 8.1.7; U.S. EPA, 2011a, section 2.2.1). Moreover, there now exist more years of PM
In considering the potential for disproportionate impacts on at-risk populations, the Policy Assessment recognizes an update of an air quality analysis conducted for the last review (U.S. EPA, 2011a, pp. 2-59 to 60; Schmidt, 2011a, Analysis A). This analysis focuses on determining if the spatial averaging provisions, as modified in 2006, could introduce inequities in protection for at-risk populations exposed to PM
Based upon the analysis described above, the Policy Assessment concludes that the existing constraints on spatial averaging, as modified in 2006, may be inadequate to avoid substantially greater exposures in some areas, potentially resulting in disproportionate impacts on at-risk populations of persons with lower SES levels as well as minorities. Therefore, the Policy Assessment concludes that it is appropriate to consider revising the form of the annual PM
The CASAC agreed with staff conclusions that it is “reasonable” for the EPA to eliminate the spatial averaging provisions (Samet, 2010d, p. 2). Further, in CASAC's comments on
In considering the Policy Assessment's conclusions based on the results of the analysis discussed above and concern over the evidence of potential disproportionate impacts on at-risk populations as well as CASAC advice, the Administrator proposes to revise the form of the annual PM
In 1997, the EPA established the form of the 24-hour PM
In revisiting the stability of a 98th versus 99th percentile form for a 24-hour standard intended to provide supplemental protection for a generally controlling annual standard, an analysis presented in the Policy Assessment considers air quality data reported in 2000 to 2008 to update our understanding of the ratio between peak-to-mean PM
The Agency recognizes that the selection of the appropriate form of the 24-hour standard includes maintaining adequate protection against peak 24-hour concentrations while also providing a stable target for risk management programs, which serves to provide for the most effective public health protection in the long run.
In considering the information provided in the Policy Assessment and recognizing that the degree of public health protection likely to be afforded by a standard is a result of the combination of the form and the level of the standard, the Administrator proposes to retain the 98th percentile form of the 24-hour standard. The Administrator provisionally concludes that the 98th percentile form represents an appropriate balance between adequately limiting the occurrence of peak concentrations and providing increased stability relative to an alternative 99th percentile form.
In the last review, the EPA selected levels for the annual and the 24-hour PM
Building upon the lessons learned in the previous PM NAAQS reviews, in considering alternative standard levels supported by the currently available scientific information, the Policy Assessment uses an approach that integrates evidence-based and risk-based considerations, takes into account CASAC advice, and considers the issues raised by the court in remanding the primary annual PM
Beyond looking directly at the relevant epidemiologic evidence, the Policy Assessment considers the extent to which specific alternative PM
Based on the quantitative risk assessment, the Policy Assessment observes, as discussed in section III.A.3, that analyses conducted for this and previous reviews demonstrate that much, if not most, of the aggregate risk associated with short-term exposures results from the large number of days during which the 24-hour average concentrations are in the low-to mid-range, below the peak 24-hour concentrations (U.S. EPA, 2011a, p. 2-9). Furthermore, as discussed in section III.C.3, the Risk Assessment observes that alternative annual standard levels, when controlling, resulted in more consistent risk reductions across urban study areas, thereby potentially providing a more consistent degree of public health protection (U.S. EPA, 2010a, pp. 5-15 to 5-16). In contrast, the Risk Assessment notes that while the results of simulating alternative suites of PM
Therefore, the Policy Assessment concludes, consistent with CASAC advice (Samet 2010c, p. 1), that it is appropriate to set a “generally controlling” annual standard that will lower a wide range of ambient 24-hour concentrations. The Policy Assessment concludes this approach would likely reduce aggregate risks associated with both long- and short-term exposures with more consistency than a generally controlling 24-hour standard and would be the most effective and efficient way to reduce total PM
The Policy Assessment recognizes that an annual standard intended to serve as the primary means for providing protection against effects associated with both long- and short-term PM
Based on the above considerations, the approach used in the Policy Assessment to identify alternative standard levels that are appropriate for consideration focuses on translating information from epidemiological studies into the basis for staff conclusions on levels. This approach is broader and more integrative than the general approach used by the EPA in previous reviews (see summary in section III.A.3 above; U.S. EPA, 2011a, sections 2.1.3 and 2.3.4.1) and reflects the more extensive and stronger body of scientific evidence now available on health effects related to long- and short-term PM
As discussed in the Policy Assessment, EPA staff recognizes that there is no single factor or criterion that comprises the “correct” approach for reaching conclusions on alternative standard levels for consideration, but rather there are various approaches that are reasonable to consider (U.S. EPA, 2011a, section 2.3.4.1). In reaching conclusions in the Policy Assessment on the ranges of standard levels that are appropriate to consider, staff considered the relative weight to place on different evidence. The Policy Assessment initially focuses on long- and short-term PM
Several factors were taken into account in placing relative weight on the body of available epidemiological studies, for example, study characteristics, including study design (e.g., time period of air quality monitoring, control for potential confounders); strength of the study (in terms of statistical significance and precision of results); and availability of population-level and air quality distribution data. As noted above in section III.A.3, the Policy Assessment places greatest weight on information from multi-city epidemiological studies to inform staff conclusions regarding alternative annual standard levels. These studies have a number of advantages compared to single-city studies
In reaching conclusions in the Policy Assessment regarding alternative 24-hour standard levels that are appropriate to consider, staff also considers relevant information from single-city short-term PM
In recognizing the absence of a discernible population threshold below which effects would not occur, the Policy Assessment's general approach for identifying alternative annual standard levels that are appropriate to consider focuses on characterizing the range of PM
The Policy Assessment explores other approaches that considered different statistical metrics to identify ranges of long-term mean PM
However, consistent with CASAC's comments on the second draft Policy Assessment
As outlined in section III.A.3 above, the Policy Assessment recognizes that there are two types of population-level information to consider in identifying the range of PM
In applying this approach, the Policy Assessment focuses on identifying the broader range of PM
With regard to the long-term mean PM
With regard to consideration of additional information from epidemiological studies which is relevant to the second approach, EPA has compiled a summary of the range of PM
The mean PM
Figure 4 summarizes statistical metrics for those studies included in Figures 1, 2, and 3 that provide evidence of statistically significant PM
In looking first at the long-term mean PM
In then considering information from multi-city, short-term exposure studies reporting positive and statistically significant associations with these same broad health effect categories, as summarized in the middle of Figure 4, the Policy Assessment observes positive and statistically significant associations at long-term mean PM
Taking into consideration additional studies of specific at-risk populations (i.e., children), the Policy Assessment expands its evaluation of the long-term exposure studies to include a broader range of health outcomes judged in the Integrated Science Assessment to have evidence suggestive of a causal relationship. This evidence was taken into account to evaluate whether it provides support for considering lower alternative levels than if weight were only placed on studies for which health effects have been judged in the Integrated Science Assessment to have evidence supporting a causal or likely causal relationship. The Policy Assessment makes note of a limited number of studies that provide emerging evidence for PM
With respect to carcinogenicity, mutagenicity, and genotoxicity (evidence suggestive of a causal relationship), the strongest evidence currently available is from long-term prospective cohort studies that report positive associations between PM
In summarizing the currently available evidence and air quality information within the context of identifying potential alternative annual standard levels for consideration, the Policy Assessment first notes that the Integrated Science Assessment concludes there is no evidence of a discernible population threshold below which effects would not occur. Thus, health effects may occur over the full range of concentrations observed in the epidemiological studies. In the absence of any discernible thresholds, the general approach used in the Policy Assessment for identifying alternative standard levels that would provide appropriate protection against effects observed in epidemiological studies has focused on the central question of identifying the range of PM
In considering the evidence, the Policy Assessment recognizes that NAAQS are standards set so as to provide requisite protection, neither more nor less stringent than necessary to protect public health with an adequate margin of safety. This judgment, ultimately made by the Administrator, involves weighing the strength of the evidence and the inherent uncertainties and limitations of that evidence. Therefore, depending on the weight placed on different aspects of the evidence and inherent uncertainties, considerations of different alternative standard levels could be supported.
Given the currently available evidence and considering the various approaches discussed above, the Policy Assessment concludes it is appropriate to focus on an annual standard level within a range of about 12 to 11 μg/m
Alternatively, an annual standard level of 11 μg/m
The Policy Assessment also considers the extent to which the available evidence provides a basis for considering alternative annual standard levels above 12 μg/m
The Policy Assessment also notes that a standard level of 13 μg/m
Beyond evidence-based considerations, the Policy Assessment also considered the extent to which quantitative risk assessment supports consideration of these alternative standard levels or provides support for lower levels. In considering simulations of just meeting alternative annual standard levels within the range of 13 to 11 μg/m
Taken together, the Policy Assessment concludes that consideration of alternative annual standard levels in the range of 13 to 11 μg/m
As recognized in section III.A.3 above, an annual standard intended to serve as the primary means for providing protection from effects associated with both long- and short-term PM
As outlined in section III.A.3 above, the Policy Assessment considers the available evidence from short-term PM
In addition to considering the epidemiological evidence, the Policy Assessment also considers air quality information, specifically peak-to-mean ratios using county-level 24-hour and annual design values, to characterize air quality patterns in areas possibly associated with strong local or seasonal sources. These patterns help in understanding the extent to which different combinations of annual and 24-hour standards would be consistent with the policy goal of setting a generally controlling annual standard with a 24-hour standard that provides supplemental protection especially for areas with high peak-to-mean ratios (U.S. EPA, 2011a, p. 2-14).
In considering the information provided by the short-term exposure studies, the Policy Assessment recognizes that to the extent these studies were conducted in areas that likely did not meet one or both of the current standards, such studies do not help inform the characterization of the potential public health improvements of alternative standards set at lower levels. Therefore, in considering the short-term exposure studies to inform staff conclusions regarding levels of the 24-hour standard that are appropriate to consider, the Policy Assessment places greatest weight on studies conducted in areas that likely met both the current annual and 24-hour standards.
With regard to multi-city studies that evaluated effects associated with short-term PM
In summary, the Policy Assessment concludes that the multi-city, short-term exposure studies generally provide support for retaining the 24-hour standard level at 35 μg/m
In reaching staff conclusions regarding alternative 24-hour standard levels that are appropriate to consider, the Policy Assessment also takes into account relevant information from single-city studies that evaluated effects associated with short-term PM
As discussed above for the multi-city studies, the Policy Assessment takes into account both the 24-hour PM
With regard to single-city studies that were conducted in areas that would likely have met both the current 24-hour and annual standards, the Policy Assessment first considers studies that reported positive and statistically significant associations. In considering this group of studies, the Policy Assessment notes Mar et al. (2003) reported a positive and statistically significant association for premature mortality in Phoenix with a long-term mean concentration of 13.5 μg/m
Four additional studies reported positive and statistically significant associations with 98th percentile values within a range of 31.2 to 25.8 μg/m
The Policy Assessment also considers short-term single-city PM
Lastly, the Policy Assessment considers single-city studies conducted in areas that would likely have met both the current 24-hour and annual standards that reported null findings. The 98th percentile values reported in these studies ranged from 29.6 to 24.0 μg/m
Viewing the evidence as a whole, the Policy Assessment observes a limited number of single-city studies that reported positive and statistically significant associations for a range of health endpoints related to short-term PM
Although a number of single-city studies report effects at appreciably lower PM
In addition to considering the epidemiological evidence, the Policy Assessment takes into account air quality information based on county-level 24-hour and annual design values to understand the implications of the alternative standard levels supported by the currently available scientific evidence, as discussed in section III.E.4.b above. As discussed in section III.A.3 above, the Policy Assessment concludes that a policy goal which includes setting the annual standard to be the “generally controlling” standard in conjunction with setting the 24-hour standard to provide supplemental protection, to the extent that additional protection is warranted, is the most effective and efficient way to reduce total population risk associated with both long- and short-term PM
Using information on the relationship of the 24-hour and annual design values, the Policy Assessment examines the implications of three alternative suites of PM
The Policy Assessment concludes that consideration of retaining the 24-hour standard level at 35 μg/m
The Policy Assessment also recognizes an alternative approach to considering the evidence that provides some support for revising the level below 35 μg/m
Beyond evidence-based considerations, the Policy Assessment also considered the extent to which the quantitative risk assessment supports consideration of retaining the current 24-hour standard level or provides support for lower standard levels. In considering simulations of just meeting the current 24-hour standard level of 35 μg/m
Taken together, the Policy Assessment concludes that while it is appropriate to consider an alternative 24-hour standard level within a range of 35 to 30 μg/m
Based on its review of the second draft Policy Assessment, CASAC agreed with the general approach for translating the available epidemiological evidence, risk information, and air quality information into the basis for reaching conclusions on alternative standards for consideration. Furthermore, CASAC agreed “that it is appropriate to return to the strategy used in 1997 that considers the annual and the short-term standards together, with the annual standard as the controlling standard, and the short-term standard supplementing the protection afforded by the annual standard” and “considers it appropriate to place the greatest emphasis” on health effects judged to have evidence supportive of a causal or likely causal relationship as presented in the Integrated Science Assessment (Samet, 2010d, p. 1).
CASAC concluded that the range of levels presented in the second draft Policy Assessment (i.e., alternative annual standard levels within a range of 13 to 11 μg/m
Although CASAC supported the alternative standard level ranges presented in the second draft Policy Assessment, it did not express support for any specific levels or combinations of standards. Rather, CASAC encouraged the EPA to develop a clearer rationale in the final Policy Assessment for staff conclusions regarding annual and 24-hour standards that are appropriate to consider, including consideration of the combination of these standards supported by the available information (Samet, 2010d, p. ii). Specifically, CASAC encouraged staff to focus on information related to the concentrations that were most influential in generating the health effect estimates in individual studies to inform alternative standard levels (Samet, 2010d, p. 2). CASAC also commented that the approach presented in the second draft Policy Assessment to identify alternative 24-hour standard levels which focused on peak-to-mean ratios was not relevant for informing the actual level (Samet 2010d, p. 4). Further, they expressed the concern that the combinations of annual and 24-hour standard levels discussed in the second draft Policy Assessment (i.e., in the range of 13 to 11 μg/m
In considering CASAC's advice as well as public comment on the second draft Policy Assessment, EPA staff conducted additional analyses and modified their conclusions regarding alternative standard levels that are appropriate to consider. The staff conclusions in the final Policy Assessment (U.S. EPA, 2011a, section 2.3.4.4) differ somewhat from the alternative standard levels discussed in the second draft Policy Assessment (U.S. EPA, 2010f, section 2.3.4.3), upon which CASAC based its advice. Changes made in the final Policy Assessment were primarily focused on improving and clarifying the approach for translating the epidemiological evidence into a basis for staff conclusions on the broadest range of alternative standard levels supported by the available scientific information and more clearly articulating the rationale for the staff's conclusions (Wegman, 2011, pp. 1 to 2). Consistent with CASAC's advice to consider more information from epidemiological studies, the EPA analyzed additional population-level data obtained from several study investigators. In commenting on draft staff conclusions in the second draft Policy Assessment, CASAC did not have an opportunity to review the staff analyses of distributional statistics to identify the broader range of PM
In reaching her conclusions regarding appropriate alternative standard levels to consider, the Administrator has considered the epidemiological and other scientific evidence, estimates of risk reductions associated with just meeting alternative annual and/or 24-hour standards, air quality analyses, related limitations and uncertainties and the advice of CASAC. As an initial matter, the Administrator agrees with the approach discussed in the Policy Assessment as summarized in sections III.A.3 and III.E.4.a above, and supported by CASAC, of considering the protection afforded by the annual and 24-hour standards taken together for mortality and morbidity effects associated with both long- and short-term exposures to PM
In reaching decisions on alternative standard levels to propose, the Administrator judges that it is most appropriate to examine where the evidence of associations observed in the epidemiological studies is strongest and, conversely, where she has appreciably less confidence in the associations observed in the epidemiological studies. Based on the characterization and assessment of the epidemiological and other studies presented and assessed in the Integrated Science Assessment and the Policy Assessment, the Administrator recognizes the substantial increase in the number and diversity of studies available in this review including extended analyses of the seminal studies of long-term PM
The newly available scientific evidence builds upon the previous scientific data base to provide evidence of generally robust associations and to provide a basis for greater confidence in the reported associations than in the last review. The Administrator recognizes that the weight of evidence, as evaluated in the Integrated Science Assessment, is strongest for health endpoints classified as having evidence of a causal relationship. These relationships include those between long- and short-term PM
Based on information discussed and presented in the Integrated Science Assessment, the Administrator recognizes that health effects may occur over the full range of concentrations observed in the long- and short-term epidemiological studies and that no discernible threshold for any effects can be identified based on the currently available evidence (U.S. EPA, 2009a, section 2.4.3). She also recognizes, in taking note of CASAC advice and the distributional statistics analysis discussed in section III.E.4.b above and in the Policy Assessment, that there is significantly greater confidence in observed associations over certain parts of the air quality distributions in the studies, and conversely, that there is significantly diminished confidence in ascribing effects to concentrations toward the lower part of the distributions.
Consistent with the general approach summarized in section III.A.3 above, and supported by CASAC as discussed in section III.E.4.d above, the Administrator generally agrees that it is appropriate to consider a level for an annual standard that is somewhat below the long-term mean PM
Based on the information summarized in Figure 4 and presented in more detail in the Policy Assessment (U.S. EPA, 2011a, chapter 2) for effects classified in the Integrated Science Assessment as having a causal or likely causal relationship with PM
The Administrator also considers additional information from epidemiological studies, consistent with CASAC advice, to take into account the broader distribution of PM
The Administrator recognizes, as summarized in section III.B.2 above, that important uncertainties remain in the evidence and information considered in this review of the primary fine particle standards. These uncertainties are generally related to understanding the relative toxicity of the different components in the fine particle mixture, the role of PM
The Administrator is mindful that considering what standards are requisite to protect public health with an adequate margin of safety requires public health policy judgments that neither overstate nor understate the strength and limitations of the evidence or the appropriate inferences to be drawn from the evidence. In considering how to translate the available information into appropriate standard levels, the Administrator weighs the available scientific information and associated uncertainties and limitations. For the purpose of determining what standard levels are appropriate to propose, the Administrator recognizes, as did EPA staff in the Policy Assessment, that there is no single factor or criterion that comprises the “correct” approach to weighing the various types of available evidence and information, but rather there are various approaches that are appropriate to consider. The Administrator further recognizes that different evaluations of the evidence and other information before the Administrator could reflect placing different weight on the relative strengths and limitations of the scientific information, and different judgments could be made as to how such information should appropriately be used in making public health policy decisions on standard levels. This recognition leads the Administrator to consider various approaches to weighing the evidence so as to identify appropriate standard levels to propose. In so doing, the Administrator encourages extensive public comment on alternative approaches to weighing the evidence and other information so as to inform her public health policy judgments before reaching final decisions on appropriate standard levels.
In considering the available information, the Administrator notes the advice of CASAC that the currently available scientific information, including epidemiological and toxicological evidence as well as risk and air quality information, provides support for considering an annual standard level within a range of 13 to 11 μg/m
In considering the extent to which the currently available evidence and information provide support for specific standard levels within the ranges identified by CASAC and the Policy Assessment as appropriate for consideration, the Administrator initially considers standard levels within the range of 13 to 11 μg/m
In considering the long-term mean PM
The Administrator also considers additional distributional analyses of population-level information that were available from four of the epidemiological studies that provide evidence of effects identified as having a causal relationship with long- or short-term PM
In considering mean PM
The Administrator also recognizes that judgments about the appropriate weight to place on any of the factors discussed above should reflect consideration not only of the relative strength of the evidence but also on the important uncertainties that remain in the evidence and information being considered in this review. The Administrator notes that the extent to which these uncertainties influence judgments about appropriate annual standard levels within the range of 13 to 11 μg/m
Based on the above considerations, the Administrator concludes that it is appropriate to propose to set a level for the primary annual PM
While the Administrator recognizes that CASAC advised, and the Policy Assessment concluded, that the available scientific information provides support for considering a range that extended down to 11 μg/m
The Administrator recognizes that potential air quality changes associated with meeting an annual standard set at a level within the range of 12 to 13 μg/m
Based on the approach discussed in section III.A.3 above, the Administrator has relied upon evidence from the short-term exposure studies as the principal basis for selecting the level of the 24-hour standard. In considering these studies as a basis for the level of a 24-hour standard, and having selected a 98th percentile form for the standard, the Administrator agrees with the focus in the Policy Assessment of looking at the 98th percentile values, as well as at the long-term mean PM
In considering the information provided by the short-term exposure studies, the Administrator recognizes that to the extent these studies were conducted in areas that likely did not meet one or both of the current standards, such studies do not help inform the characterization of the potential public health improvements of alternative standards set at lower levels. By reducing the PM
With regard to multi-city studies that evaluated effects associated with short-term PM
In proposing to revise the level of the annual standard to within the range of 12 to 13 μg/m
In addition to considering the epidemiological evidence, the Administrator also has taken into account air quality information based on county-level 24-hour and annual design values to understand the implications of retaining the 24-hour standard level at 35 μg/m
In considering the air quality information, the Administrator first recognizes that there is no annual standard within the proposed range of levels, when combined with a 24-hour standard at the proposed level of 35 μg/m
Taking the above considerations into account, the Administrator proposes to revise the level of the primary annual PM
The Administrator recognizes that the final suite of standards selected from within the proposed range of annual standard levels, or the broader range of annual standard levels on which public comment is solicited, must be clearly responsive to the issues raised by the D.C. Circuit's remand of the 2006 primary annual PM
Having reached her provisional judgment to propose revising the annual standard level from 15.0 to within a range of 12.0 to 13.0 μg/m
For the reasons discussed above, and taking into account the information and assessments presented in the Integrated Science Assessment, Risk Assessment, and Policy Assessment, the advice and recommendations of CASAC, and public comments to date, the Administrator proposes to revise the current primary PM
This section presents the rationale for the Administrator's proposed decision to retain the current 24-hour PM
In presenting the rationale for the proposed decision to retain the current primary PM
The following sections discuss previous reviews of the PM NAAQS (section IV.A.1), the litigation of the 2006 decision on the PM
The PM NAAQS have always included some type of a primary standard to protect against effects associated with exposures to thoracic coarse particles. In 1987, when the EPA first revised the PM NAAQS, the EPA changed the indicator for PM from TSP to focus on inhalable particles, those which can penetrate into the trachea, bronchi, and deep lungs (52 FR 24634, July 1, 1987). The EPA changed the PM indicator to PM
In the 1997 review, in conjunction with establishing new fine particle (i.e., PM
In May 1998, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit found “ample support” for EPA's decision to regulate coarse particle pollution, but vacated the 1997 PM
In the review of the PM NAAQS that concluded in 2006, the EPA considered the growing, but still limited, body of evidence supporting associations between health effects and thoracic coarse particles measured as PM
The Agency received a large number of comments overwhelmingly and persuasively opposed to the proposed qualified PM
The Agency ultimately concluded that the existing indicator, PM
The Agency also revoked the annual PM
In the same rulemaking, the EPA also included a new FRM for the measurement of PM
A number of groups filed suit in response to the final decisions made in the 2006 review.
First, the court upheld EPA's decision for a standard to encompass all thoracic coarse PM, both of urban and non-urban origin. The court rejected arguments that the evidence showed there are no risks from exposure to non-urban coarse PM. The court further found that the EPA had a reasonable basis not to set separate standards for urban and non-urban coarse PM, namely the inability to reasonably define what ambient mixes would be included under either `urban' or `non-urban;' and the evidence in the record that supported EPA's appropriately cautious decision to provide “some protection from exposure to thoracic coarse particles * * * in all areas.” 559 F. 3d at 532-33. Specifically, the court stated,
Although the evidence of danger from coarse PM is, as EPA recognizes, “inconclusive,” (71 FR 61193, October 17, 2006), the agency need not wait for conclusive findings before regulating a pollutant it reasonably believes may pose a significant risk to public health. The evidence in the record supports the EPA's cautious decision that “some protection from exposure to thoracic coarse particles is warranted in all areas.”
The court also upheld EPA's decision to retain the level of the standard at 150 μg/m
With regard to the challenge from environmental and public health groups, the court upheld EPA's decision to revoke the annual PM
The EPA reasonably decided that an annual coarse PM standard is not necessary because, as the Criteria Document and the Staff Paper make clear, the latest scientific data do not indicate that long-term exposure to coarse particles poses a health risk. The CASAC also agreed that an annual coarse PM standard is unnecessary. 559 F. 3d at 538-39.
The approach taken to considering the existing and potential alternative primary PM
In contrast to previous reviews, where PM
Evidence-based approaches to using information from epidemiological studies to inform decisions on PM standards are complicated by the recognition that no population threshold, below which it can be concluded with confidence that PM-related effects do not occur, can be discerned from the available evidence (U.S. EPA, 2009a, section 2.4.3). As a result, any approach to reaching decisions on what standards are appropriate requires judgments about how to translate the information available from the epidemiological studies into a basis for appropriate standards, which includes consideration of how to weigh the uncertainties in reported associations across the distributions of PM concentrations in the studies. The approach taken to informing these decisions in the current review recognizes that the available health effects evidence reflects a continuum consisting of ambient levels at which scientists generally agree that health effects are likely to occur through lower levels at which the likelihood and magnitude of the response become increasingly uncertain. Such an approach is consistent with setting standards that are neither more nor less stringent than necessary, recognizing that a zero-risk standard is not required by the CAA.
As discussed in more detail in the Risk Assessment (U.S. EPA, 2010a, Appendix H), the EPA did not conduct a quantitative assessment of health risks associated with PM
The following sections discuss available information on the health effects associated with exposures to PM
Since the conclusion of the last review, the Agency has developed a more formal framework for reaching causal inferences from the body of scientific evidence. As discussed above in section III.B.1, this framework uses a five-level hierarchy that classifies the overall weight of evidence using the following categorizations: Causal relationship, likely to be a causal relationship, suggestive of a causal relationship, inadequate to infer a causal relationship, and not likely to be a causal relationship (U.S. EPA, 2009a, section 1.5). Applying this framework to thoracic coarse particles, the Integrated Science Assessment concludes that the existing evidence is “suggestive” of a causal relationship between short-term PM
The Integrated Science Assessment assesses a number of multi-city and single-city epidemiological studies that have evaluated associations between mortality and short-term PM
One important PM
When risk estimates in the study by Zanobetti and Schwartz (2009) were evaluated by climatic region (U.S. EPA, 2009a, Figure 6-28), a mix of positive and negative PM
Of the available single-city PM
The Integrated Science Assessment assesses a number of studies that have evaluated the link between short-term ambient concentrations of thoracic coarse particles and cardiovascular effects. Single- and multi-city epidemiological studies generally report positive associations between short-term PM
An important cardiovascular morbidity study published since the last review of the PM NAAQS is the U.S. multi-city study by Peng et al. (2008). This study evaluates hospital admissions and emergency department visits for cardiovascular disease in Medicare patients (MCAPS, Peng et al., 2008). The authors report a positive and statistically significant association between 24-hour PM
In addition to this U.S. multi-city study, positive associations reported for short-term PM
The plausibility of the positive associations reported for PM
The Integrated Science Assessment also assesses a number of studies that have evaluated the link between short-term ambient concentrations of thoracic coarse particles and respiratory effects. This includes recent studies conducted in the U.S., Canada, and France (U.S. EPA, 2009a, section 6.3.8), including the U.S. multi-city study of Medicare patients by Peng et al. (2008). As discussed above, Peng estimated PM
A limited number of epidemiological studies have focused on specific respiratory morbidity outcomes and reported both positive and negative, but generally not statistically significant, associations between PM
In the absence of a systematic national effort to characterize PM
As discussed above, positive associations between short-term PM
An indication of the sources of some of these trace elements (e.g., metals such as lead, copper, and zinc) in ambient PM
In considering the potential for PM
(1) Middleton et al. (2008) reported that dust storms in Cyprus were associated with a statistically significant increase in risk of hospitalization for all causes and a non-significant increase in hospitalizations for cardiovascular disease.
(2) Chan et al. (2008) studied the effects of Asian dust storms on cardiovascular-related hospital admissions in Taipei, Taiwan and reported a statistically significant increase associated with 39 Asian dust events. Evaluating the same data, Bell et al. (2008) also reported positive and statistically significant associations between hospitalization for ischemic heart disease and PM
(3) Perez et al. (2008) tested the hypothesis that outbreaks of Saharan dust exacerbate the effects of PM
In contrast to the studies noted above, some dust storm studies have reported associations that were not statistically significant. Specifically, Bennett et al. (2006) reported on a dust storm in the Gobi desert that transported PM across the Pacific Ocean, reaching western North America in the spring of 1998. The authors reported no excess risk of cardiovascular-related or respiratory-related hospital admissions associated with the dust storm in the population of British Columbia's Lower Fraser Valley (Bennett et al., 2006). In addition, Yang et al. (2009) reported that hospitalizations for congestive heart failure were elevated during or immediately following 54 Asian dust storm events, though effect estimates were not statistically significant.
As discussed above, a 24-hour PM
In considering 24-hour PM
Of the single-city mortality studies conducted in the United States where ambient PM
As discussed above, PM
In considering PM
For example, Lin et al. (2002) reported positive and statistically significant associations between PM
In contrast Middleton et al. (2008), who reported that dust storms in Cyprus were associated with a statistically significant increase in risk of hospitalization for all causes and a non-significant increase in hospitalizations for cardiovascular diseases, reported a maximum 24-hour PM
In addition to the single-city studies discussed above, multi-city averages of PM
Specific groups within the general population are likely at increased risk for suffering adverse effects following PM
Although studies have primarily used exposures to PM
Given the range of at-risk groups, the population potentially affected by PM
Although new PM
The Integrated Science Assessment concludes that an important uncertainty in interpreting PM
Another important uncertainty is related to exposure error. The Integrated Science Assessment concludes that “there is greater spatial variability in PM
In addition, there is uncertainty in the air quality estimates used in PM
Another uncertainty results from the relative lack of information on the chemical and biological composition of PM
One of the implications of the uncertainties and limitations discussed above is that the Risk Assessment concluded it would not be appropriate to conduct a quantitative assessment of health risks associated with PM
(1) Concerns that monitoring data that would be used in a PM
(2) Uncertainty in the prediction of ambient levels under current and alternative standard levels.
(3) Concerns that locations used in the risk assessment may not be representative of areas experiencing the most significant 24-hour peak PM
(4) Concerns about the relatively small (i.e., compared to PM
When considered together, the limitations outlined above resulted in the conclusion that a quantitative PM
The following sections discuss EPA's consideration of whether to revise the current PM
As discussed above, a 24-hour PM
In considering the health evidence, air quality information, and associated uncertainties as they relate to the current PM
(1) While most of PM
(2) The number of epidemiological studies that have employed co-pollutant models to address the potential for confounding, particularly by PM
(3) Only a limited number of experimental studies provide support for the associations reported in epidemiological studies, resulting in further uncertainty regarding the plausibility of a causal link between PM
(4) Limitations in PM
(5) The chemical and biological composition of PM
(6) In considering the available evidence and its associated uncertainties, the Integrated Science Assessment concluded that the evidence is “suggestive” of a causal relationship between short-term PM
The Policy Assessment concludes that, to the extent a decision on the adequacy of the current 24-hour PM
In addition, the Policy Assessment notes that, when considering the uncertainties and limitations in the PM
The Policy Assessment also notes an alternative approach to considering the evidence and its uncertainties would place emphasis on the following:
(1) Several multi-city epidemiological studies conducted in the U.S., Canada, and Europe, as well as a number of single-city studies, have reported generally positive, and in some cases statistically significant, associations between short-term PM
(2) Both single-city and multi-city analyses, using different approaches to estimate ambient PM
(3) While limited in number, studies that have evaluated co-pollutant models have generally reported that PM
(4) Support for the plausibility of the associations reported in epidemiological studies is provided by a small number of controlled human exposure studies reporting that short-term (i.e., 2-hour) exposures to PM
This approach to considering the health evidence, air quality information, and the associated uncertainties would place substantial weight on the generally positive PM
Given all of the above, the Policy Assessment concludes that it would be appropriate to consider either retaining or revising the current 24-hour PM
Given the conclusion that it would be appropriate to consider either retaining or revising the current PM
As noted above, PM
In considering the indicator in the current review, the Policy Assessment evaluated the extent to which PM
The Policy Assessment also considered the appropriateness of a PM
Given these considerations, and given the increased potential for coarse particles in urban areas to become contaminated by toxic components of fine particles from urban/industrial sources (U.S. EPA, 2004 at 8-344; 71 FR 61196, October 17, 2006), the Policy Assessment concludes that it is reasonable to consider an indicator that targets control to areas with the types of ambient mixes generally present in urban areas. The Policy Assessment notes that such an indicator would focus control on areas with ambient mixes known with greater certainty to be associated with adverse health effects and, therefore, would provide public health benefits with the greatest degree of certainty. Therefore, as in the last review, the Policy Assessment reaches the conclusion that a PM
In contrast, the Policy Assessment notes that a PM
Given all of the above considerations, the Policy Assessment concludes that the available evidence supports consideration in the current review of a PM
Based primarily on epidemiological studies that reported positive associations between short-term (24-hour) PM
In the current review, the Policy Assessment notes the conclusions from the Integrated Science Assessment regarding the weight of evidence for short-term and long-term PM
In considering these weight-of-evidence determinations, the Policy Assessment concludes that, at a minimum, they suggest the importance of maintaining a standard that protects against short-term exposures to thoracic coarse particles. Given that the majority of the evidence supporting the link between short-term PM
The Policy Assessment further concludes that the available evidence does not support consideration of an annual thoracic coarse particle standard at this time. In reaching this conclusion, the Policy Assessment also notes that, to the extent a short-term standard requires areas to reduce their 24-hour ambient particle concentrations, long-term concentrations would also be expected to decrease (
The “form” of a standard defines the air quality statistic that is to be compared to the level of the standard in determining whether an area attains that standard. As discussed above, in the last review the Administrator retained the one-expected exceedance form of the primary 24-hour PM
In the current review, the Policy Assessment considers the form of the standard within the context of the overall decision on whether, and if so how, to revise the current 24-hour PM
Although the selection of a specific form must be made within the context of decisions on the other elements of the standard, the Policy Assessment notes that the EPA generally favors concentration-based forms for short-term standards. In 1997, the EPA established a 98th percentile form for the 24-hour PM
These considerations are also relevant in the current review of the 24-hour PM
In considering the potential appropriateness of a 98th percentile form in the current review, the Policy Assessment notes that, compared to the current PM
In further considering this issue the Policy Assessment notes that, compared to the current one-expected-exceedance form, a concentration-based form specified as a percentile of the annual distribution of PM
In light of all of the above considerations, the Policy Assessment concludes that, to the extent it is judged appropriate to revise the current 24-hour PM
In their review of the second draft Policy Assessment, CASAC noted that such a change in form “will lead to changes in levels of stringency across the country” and recommended that this issue be explored further (Samet, 2010d). In considering this issue, the Policy Assessment acknowledges that, given differences in PM
In giving initial consideration to this issue, the Policy Assessment used recent PM
As noted above, the Policy Assessment concluded that, to the extent it is judged in the current review that the 24-hour PM
As discussed above, in considering the evidence as it relates to potential alternative standard levels, the Policy Assessment first considers the relative weight to place on specific epidemiological studies, including the weight to place on the uncertainties associated with those studies. The Policy Assessment considers several factors in placing weight on specific epidemiological studies including the extent to which studies report statistically significant associations with PM
In considering PM air quality in study locations, the Policy Assessment also notes that the available evidence does not support the existence of thresholds, or lowest-observed-effects levels, in terms of 24-hour average concentrations (U.S. EPA, 2009a, section 2.4.3).
In single-city mortality studies, as well as the single-city analyses of the locations evaluated by Zanobetti and Schwartz (2009), positive and statistically significant PM
Among U.S. morbidity studies, Ito (2003) reported a positive and statistically significant PM
In addition to the evidence-based considerations described above, the Policy Assessment estimated the level of a 24-hour PM
The Policy Assessment also evaluates regional differences in the relationship between 98th percentile PM
To provide a broader perspective on the relationship between the current standard and potential alternative standards with 98th percentile forms, the Policy Assessment also compares the size of the populations living in counties with PM
Given the variability in the relationship between the current standard and potential alternative standards with 98th percentile forms, the Policy Assessment concludes that no single potential alternative standard level, for a revised standard with a 98th percentile form, would provide public health protection equivalent to that provided by the current standard, consistently over time and across locations.
One consequence of this variability, as noted above in the discussion of the form of the standard, would be that a 24-hour PM
The Policy Assessment initially considers U.S. study locations that would likely have met the current PM
The Policy Assessment also considered U.S. locations where health studies have reported positive associations (both statistically significant and non-significant) between PM
In addition to the above analyses, the Policy Assessment also considered locations where health studies reported positive associations with PM
Therefore, among U.S. study locations where PM
In considering the integration of the evidence and air quality information within the context of identifying potential alternative standard levels for consideration, the Policy Assessment first notes the following:
(1) Analyses of air quality correlations suggest that a 98th percentile 24-hour PM
(2) A 98th percentile 24-hour PM
(3) Multi-city average 98th percentile PM
(4) Epidemiological studies have reported positive, and in a few instances statistically significant, associations with PM
To the extent the above considerations are emphasized, the Policy Assessment notes that a standard level as high as about 85 μg/m
Given the above, the Policy Assessment concludes that a 98th percentile standard with a level as high as 85 μg/m
However, the Policy Assessment also notes that, overall across the U.S., based on recent air quality information (i.e., 2007-2009), fewer people live in counties with 98th percentile 24-hour PM
The Policy Assessment concludes that alternative approaches to considering the evidence could also lead to consideration of standard levels below 75 μg/m
In considering potential alternative standard levels below 65 μg/m
(1) Epidemiological studies, either single-city or multi-city, have not reported positive and statistically significant PM
(2) Although some single-city morbidity studies have reported positive, but not statistically significant, associations with PM
(3) Although Bayes-adjusted single-city PM
In light of these limitations in the evidence for a relationship between PM
Following their review of the first and second draft Policy Assessments, CASAC provided advice and recommendations regarding the current and potential alternative standards for thoracic coarse particles (Samet, 2010c,d). With regard to the existing PM
The CASAC agreed with staff's conclusions that the available evidence supports consideration in the current review of retaining the current PM
The CASAC also agreed that the evidence supports consideration of a potential alternative form. Specifically, CASAC “felt strongly that it is appropriate to change the statistical form of the PM
With regard to standard level, in conjunction with a 98th percentile form, CASAC concluded that “alternative standard levels of 85 and 65 μg/m
In making this recommendation, CASAC noted that the number of people living in counties with air quality not meeting the current standard is approximately equal to the number living in counties that would not meet a 98th percentile standard with a level between 75 and 80 μg/m
In considering the evidence and information as they relate to the adequacy of the current 24-hour PM
(1) The extent to which it is appropriate to maintain a standard that provides some measure of protection against all PM
(2) The extent to which it is appropriate to retain a PM
(3) The extent to which the current PM
With regard to the first point, in the last review the EPA concluded that dosimetric, toxicological, occupational, and epidemiological evidence supported retention of a primary standard to provide some measure of protection against short-term exposures to all thoracic coarse particles, regardless of their source of origin or location, consistent with the Act's requirement that primary NAAQS provide an adequate margin of safety (71 FR 61197, October 17, 2006). In that review, the EPA concluded that a number of source types, including motor vehicle emissions, coal combustion, oil burning, and vegetative burning, are associated with health effects (U.S. EPA, 2004). In litigation of the decisions from the last review, the D.C. Circuit affirmed the conclusion that it was appropriate to provide “some protection from exposure to thoracic coarse particles * * * in all areas” (
In considering this issue in the current review, the Administrator judges that the expanded body of scientific evidence provides even more support for a standard that protects against exposures to all thoracic coarse particles, regardless of their location or source of origin. Specifically, the Administrator notes that epidemiological studies have reported positive associations between PM
In light of this body of available evidence reporting PM
With regard to the second point, in considering the appropriateness of a PM
In considering the appropriateness of this variation in allowable PM
The Administrator also notes that chemical constituents present at higher levels in urban or industrial areas, including byproducts of incomplete combustion (e.g. polycyclic aromatic hydrocarbons) emitted as PM
Given that the large majority of the evidence for PM
Given all of the above considerations and conclusions, the Administrator judges that the available evidence supports retaining a PM
In reaching this initial conclusion, the Administrator also notes that, in their review of the second draft Policy Assessment, CASAC concluded that “[w]hile it would be preferable to use an indicator that reflects the coarse PM directly linked to health risks (PM
With regard to the third point, in evaluating the degree of public health protection provided by the current PM
(1) The PM
(2) Individual PM
(3) The limited number of PM
(4) The limited number of PM
(5) Uncertainties in the PM
(6) Uncertainties and limitations in the evidence that tend to call into question the presence of a causal relationship between PM
In evaluating the different possible approaches to considering the public health protection provided by the current PM
The Administrator notes that the important uncertainties and limitations associated with the scientific evidence and air quality information raise questions as to whether public health benefits would be achieved by revising the existing PM
(1) While PM
(2) The number of epidemiological studies that have employed co-pollutant models to address the potential for confounding, particularly by PM
(3) Only a limited number of experimental studies provide support for the associations reported in epidemiological studies, resulting in further uncertainty regarding the plausibility of the associations between PM
(4) Limitations in PM
(5) The lack of a quantitative PM
(6) The chemical and biological composition of PM
In considering these uncertainties and limitations, the Administrator notes in particular the considerable degree of uncertainty in the extent to which health effects reported in epidemiological studies are due to PM
With regard to this provisional conclusion, the Administrator notes that, for single-city mortality studies conducted in the United States where ambient PM
In addition, in considering the single-city analyses for the locations evaluated in the multi-city study by Zanobetti and Schwartz (2009), the Administrator notes that associations in most of these locations were not statistically significant and that this was the only study to estimate ambient PM
The Administrator acknowledges that an approach to considering the available scientific evidence and air quality information that emphasizes the above considerations differs from the approach taken by CASAC. Specifically, CASAC placed a substantial amount of weight on individual studies, particularly those reporting positive health effects associations in locations that met the current PM
The Administrator has carefully considered CASAC's advice and recommendations. She notes that in making its recommendation on the current PM
In light of the above approach to considering the scientific evidence, air quality information, and associated uncertainties, the Administrator reaches the following provisional conclusions:
(1) Given the important uncertainties and limitations associated with the overall body of health evidence and air quality information for PM
(2) Given that positive and statistically significant associations with mortality were reported in single-city U.S. study locations likely to have violated the current PM
In reaching these provisional conclusions, the Administrator notes that the Policy Assessment also discusses the potential for a revised PM
In considering the appropriateness of revising the current PM
(1) As discussed above, positive PM
(2) Also as discussed above, effect estimates for morbidity endpoints in locations that met the current standard were both positive and negative, with most not statistically significant.
(3) Important uncertainties and limitations associated with the overall body of health evidence and air quality information for PM
Given all of the above considerations, the Administrator notes that there is a
In considering all of the above, including the scientific evidence, the air quality information, the associated uncertainties, and CASAC's advice, the Administrator reaches the provisional conclusion that the current 24-hour PM
The Administrator recognizes that her proposed conclusions and decision to retain the current PM
For the reasons discussed above, and taking into account the information and assessments presented in the Integrated Science Assessment and the Policy Assessment and the advice and recommendations of CASAC, the Administrator proposes to retain the current primary PM
Sections 319(a)(1) and (3) of the CAA require the EPA to establish a uniform air quality index for reporting of air quality. These sections specifically direct the Administrator to “promulgate regulations establishing an air quality monitoring system throughout the United States which utilizes uniform air quality monitoring criteria and methodology and measures such air quality according to a uniform air quality index” and “provides for daily analysis and reporting of air quality based upon such uniform air quality index * * *” In 1979, the EPA established requirements for index reporting (44 FR 27598, May 10, 1979). The requirement for State and local agencies to report the AQI appears in 40 CFR 58.50 and the specific requirements (e.g., what to report, how to report, reporting frequency, calculations) are in appendix G to 40 CFR part 58.
Information on the public health implications of ambient concentrations of criteria pollutants is currently made available primarily by AQI reporting through EPA's AIRNow Web site.
The AQI converts pollutant concentrations in a community's air to a number on a scale from 0 to 500. Reported AQI values enable the public to know whether air pollution levels in a particular location are characterized as good (0-50), moderate (51-100), unhealthy for sensitive groups (101- 150), unhealthy (151-200), very unhealthy (201-300), or hazardous (301-500). The AQI index value of 100 typically corresponds to the level of the short-term (e.g., daily or hourly standard) NAAQS for each pollutant. Below an index value of 100, an intermediate value of 50 was defined either as the level of the annual standard if an annual standard has been established (e.g., PM
Historically, state and local agencies have primarily used the AQI to provide general information to the public about air quality and its relationship to public health. For more than a decade, many states and local agencies, as well as the EPA and other Federal agencies, have been developing new and innovative programs and initiatives to provide more information to the public, in a more timely way. These initiatives, including air quality forecasting, real-time data reporting through the AIRNow Web site, and air quality action day programs, can serve to provide useful, up-to-date, and timely information to the public about air pollution and its effects. Such information will help individuals take actions to avoid or to reduce exposures to ambient pollution at levels of concern to them and can encourage the public to take actions that will reduce air pollution on days when levels are projected to be at levels of concern to local communities. Thus, these programs have significantly broadened the ways in which state and local agencies can meet the nationally uniform AQI reporting requirements, and are contributing to state and local efforts to provide community health protection and to attain or maintain compliance with the NAAQS. The EPA and state and local agencies recognize that these programs are interrelated with AQI reporting and with the information on the effects of air pollution on public health that is generated through the periodic review, and revision when appropriate, of the NAAQS.
In recognition of the proposed change to the primary annual PM
With respect to an AQI value of 50, as discussed above, the historical approach is to set it at the same level of the annual standard, if there is one. This is consistent with the current AQI sub-index for PM
With respect to an AQI value of 100, which is the basis for advisories to individuals in sensitive groups, there are two general approaches that could be used to select the associated PM
An alternative approach is to directly evaluate the health effects evidence to select the level for an AQI value of 100. This was the approach used in the 1999 rulemaking to set the AQI value of 100 at a level of 40 μg/m
With respect to an AQI value of 150, this level is based upon the same health effects information that informs the selection of the level of the 24-hour standard and the AQI value of 100. The AQI value of 150 was set in the 1999 rulemaking at a level of 65 μg/m
With respect to an AQI value of 500, a review of the history of the AQI value of 500 for PM
Further, in considering the body of more recent health effects evidence available in this review, the EPA concludes that there is little information about more recent air pollution episodes similar to the wintertime pollution episodes in London and associated impacts on community health upon which to base a decision. Thus, the EPA concludes that it remains appropriate to use the historical wintertime pollution episodes in London as the basis for setting an AQI value of 500 for PM
Based on the above considerations, the EPA concludes that it is appropriate to propose to retain the current level of 500 μg/m
For the intermediate breakpoints in the AQI between the values of 150 and 500, the EPA proposes PM
Table 2 below summarizes the proposed breakpoints for the PM
In proposing to retain the 500 level for the AQI as described above, we note that the EPA is not proposing to establish a Significant Harm Level (SHL) for PM
This section presents the rationale for the Administrator's proposed decisions to revise the current suite of secondary PM standards by adding a distinct standard for PM
The current suite of secondary PM standards is identical to the current suite of primary PM standards, including 24-hour and annual PM
The approach used for reviewing the current suite of secondary PM standards builds upon and broadens the approaches used in previous PM NAAQS reviews. The following discussion focuses particularly on the current PM
The original secondary PM
In 1997, the EPA revised the identical primary and secondary PM NAAQS in part by establishing new identical primary and secondary PM
Based on these considerations, the EPA assessed potential visibility improvements in urban areas and on a regional scale that would result from attainment of the new primary standards for PM
Having concluded that attainment of the annual and 24-hour PM
The EPA then considered the potential effectiveness of a regional haze program, required by sections 169A and 169B of the CAA
For these reasons, the EPA concluded that a national regional haze program, combined with a nationally applicable level of protection achieved through secondary PM
Based on these considerations, in 1997 the EPA set secondary PM
In 2006, EPA revised the suite of secondary PM
In so doing, the Administrator recognized that PM-related visibility impairment is principally related to fine particle concentrations and that perception of visibility impairment is most directly related to short-term, nearly instantaneous levels of visual air quality. Thus, in considering whether the then-current suite of secondary standards would provide the appropriate degree of protection, he concluded that it was appropriate to focus on just the 24-hour secondary PM
The Administrator then considered whether PM
In considering what level of protection against PM-related visibility impairment would be appropriate, the Administrator took into account the results of the public perception and attitude surveys regarding the acceptability of various degrees of visibility impairment in the U.S. and
The Administrator also considered the level of protection that would be afforded by the proposed suite of primary PM
In commenting on the proposed decision, the CASAC requested that a sub-daily standard to protect visibility “be favorably reconsidered” (Henderson, 2006a, p.6). The CASAC noted three cautions regarding the proposed reliance on a secondary PM
In reaching a final decision, the Administrator focused on the relative protection provided by the proposed primary standards based on the above-mentioned similarities in percentages of counties meeting alternative standards, and on the limitations in the information available concerning studies of public perception and attitudes regarding the acceptability of various degrees of visibility impairment in urban areas, as well as on the subjective nature of the judgment required. In so doing, the Administrator concluded that caution was warranted in establishing a distinct secondary standard for visibility impairment and that the available information did not warrant adopting a secondary standard that would provide either more or less protection against visibility impairment in urban areas than would be provided by secondary standards set equal to the proposed primary PM
As noted above in section II.B.2 above, several parties filed petitions for review challenging EPA's decision to set the secondary NAAQS for fine PM identical to the primary NAAQS. On judicial review, the D.C. Circuit remanded to EPA for reconsideration the secondary NAAQS for fine PM because the Agency's decision was unreasonable and contrary to the requirements of section 109(b)(2).
The petitioners argued that EPA's decision lacked a reasoned basis. First, they asserted that EPA never determined what level of visibility was “requisite to protect the public welfare.” They argued that EPA unreasonably
Second, the petitioners challenged EPA's method of comparing the protection expected from potential standards. They contended that EPA relied on a meaningless numerical comparison, ignored the effect of humidity on the usefulness of a standard using a daily averaging time, and unreasonably concluded that the primary standards would achieve a level of visibility roughly equivalent to the level the EPA staff and CASAC deemed “requisite to protect the public welfare.” The court found that EPA's equivalency analysis based on the percentages of counties exceeding alternative standards “failed on its own terms.” The same table showing the percentages of counties exceeding alternative secondary standards, used for comparison to the percentages of counties exceeding alternative primary standards to show equivalency, also included six other alternative secondary standards within the recommended CASAC range that would be more “protective” under EPA's definition than the adopted primary standards. Two-thirds of the potential secondary standards within the CASAC's recommended range would be substantially more protective than the adopted primary standards. The court found that EPA failed to explain why it looked only at one of the few potential secondary standards that would be less protective, and only slightly less so, than the primary standards. More fundamentally, however, the court found that EPA's equivalency analysis based on percentages of counties demonstrated nothing about the relative protection offered by the different standards, and that the tables offered no valid information about the relative visibility protection provided by the standards. 559 F. 3d at 530-31.
Finally, the Staff Paper had made clear that a visibility standard using PM
The approach used in this review broadens the general approaches used in the last two PM NAAQS reviews by utilizing, to the extent available, enhanced tools, methods, and data to more comprehensively characterize visibility impacts. As such, the EPA is taking into account considerations based on both the scientific evidence (“evidence-based”) and a quantitative analysis of PM-related impacts on visibility (“impact-based”) to inform conclusions related to the adequacy of the current secondary PM
The Policy Assessment draws from the qualitative evaluation of all studies discussed in the Integrated Science Assessment (U.S. EPA, 2009a). Specifically, the Policy Assessment considers the extensive new air quality and source apportionment information available from the regional planning organizations, long-standing evidence of PM effects on visibility, and public preference studies from four urban areas (U.S. EPA, 2009a, chapter 9), as well as the integration of evidence across disciplines (U.S. EPA, 2009a, chapter 2). In addition, limited information that has become available regarding the characterization of public preferences in urban areas has provided some new perspectives on the usefulness of this information in informing the selection of target levels of urban visibility protection. On these bases, the Policy Assessment again focuses assessments on visibility conditions in urban areas.
The conclusions in the Policy Assessment reflect EPA staff's understanding of both evidence-based and impact-based considerations to inform two overarching questions related to: (1) The adequacy of the current suite of PM
As discussed below, the rationale for the Administrator's proposed decision regarding secondary PM standards to protect against visibility impairment focuses on those considerations most influential in the Administrator's proposed decisions, including consideration of: (1) The latest scientific information on visibility effects associated with PM as described in the Integrated Science Assessment (U.S. EPA, 2009a); (2) insights gained from assessments of correlations between ambient PM
This section outlines key information contained in the Integrated Science Assessment, the Visibility Assessment and the Policy Assessment on: (1) The nature of visibility impairment, including the relationship between ambient PM and visibility, temporal variations in light extinction, periods during the day of interest for assessing visibility conditions, and exposure durations of interest and (2) public perceptions and attitudes about visibility impairment and the impacts of visibility impairment on public welfare.
New research conducted by regional planning organizations in support of the Regional Haze Rule, as discussed in chapter 9 of the Integrated Science Assessment, continues to support and refine EPA's understanding of the effect of PM on visibility and the source
Visibility impairment is caused by the scattering and absorption of light by suspended particles and gases in the atmosphere. The combined effect of light scattering and absorption by both particles and gases is characterized as light extinction, i.e., the fraction of light that is scattered or absorbed in the atmosphere. Light extinction is quantified by a light extinction coefficient with units of 1/distance, which is often expressed in the technical literature as 1/(1 million meters) or inverse megameters (abbreviated Mm
The amount of light extinction contributed by PM depends on the particle size distribution and composition, as well as its particle concentration. If details of the ambient particle size distribution and composition (including the mixing of components) are known, Mie theory can be used to accurately calculate PM light extinction (U.S. EPA, 2009a, chapter 9). However, routine monitoring rarely includes measurements of particle size and composition information with sufficient detail for such calculations. To make estimation of light extinction more practical, visibility scientists have developed a much simpler algorithm, known as the IMPROVE algorithm,
In either version of the IMPROVE algorithm, the concentration of each of the major aerosol components is multiplied by a dry extinction efficiency value and, for the hygroscopic components (i.e., ammoniated sulfate and ammonium nitrate), also multiplied by an additional factor to account for the water growth to estimate these components' contribution to light extinction. Both the dry extinction efficiency and water growth terms have been developed by a combination of empirical assessment and theoretical calculation using typical particle size distributions associated with each of the major aerosol components. They have been evaluated by comparing the algorithm estimates of light extinction with coincident optical measurements. Summing the contribution of each component gives the estimate of total light extinction per unit distance denoted as the light extinction coefficient (
Light extinction (
For the first two terms, “sulfate” is defined in terms of ammonium sulfate and “nitrate” is defined in terms of ammonium nitrate. Since IMPROVE does not include ammonium ion monitoring, the assumption is made that all sulfate is fully neutralized ammonium sulfate and all nitrate is assumed to be ammonium nitrate.
The
As noted above, particles with hygroscopic components (e.g., particulate sulfate and nitrate) contribute more light extinction at higher relative humidity than at lower relative humidity because they change size in the atmosphere in response to ambient relative humidity conditions. PM containing elemental or black carbon (BC) absorbs light as well as scattering it, making it the component with the greatest light extinction contributions per unit of mass concentration, except for the hygroscopic components under high relative humidity conditions.
With regard to the fifth and sixth terms, the fine soil component is based on measurement of five elements: Aluminum (Al), silicon (Si), calcium (Ca), iron (Fe), and titanium (Ti).
Fine Soil = 2.20 × [Al] + 2.49 × [Si] + 1.63 × [Ca] + 2.42 × [Fe] + 1.94 × [Ti].
Subsequent to the development of the original IMPROVE algorithm, an alternative algorithm (variously referred to as the “revised algorithm” or the “new algorithm” in the literature) has been developed. It employs a more complex split-component mass extinction efficiency to correct biases believed to be related to particle size distributions, a sea salt term that can be important for remote coastal areas, a different multiplier for organic carbon for purposes of estimating organic carbonaceous material,
As mentioned above, particles are not the only contributor to ambient visibility conditions. Light scattering by gases also occurs in ambient air. Under pristine atmospheric conditions, naturally occurring gases such as elemental nitrogen and oxygen cause what is known as Rayleigh scattering. Rayleigh scattering depends on the density of air, which is a function primarily of the elevation above sea level, and can be treated as a site-dependent constant. The Rayleigh scattering contribution to light extinction is only significant under pristine conditions. The only other commonly occurring atmospheric gas to appreciably absorb light in the visible spectrum is nitrogen dioxide. Nitrogen dioxide forms in the atmosphere from nitrogen oxide emissions associated with combustion processes. These combustion processes also emit PM at levels that generally contribute much higher light extinction than the nitrogen dioxide (i.e., nitrogen dioxide absorption is generally less than approximately 5 percent of the light extinction, except where emission controls remove most of the PM prior to releasing the remaining gases to the atmosphere). The final term in the IMPROVE algorithm of 10 Mm
In the following discussions, visual air quality is characterized in terms of both light extinction, as discussed above, and an alternative scale for characterizing visibility—the deciview scale—that is defined directly in terms of light extinction (expressed in units of Mm
The deciview scale is frequently used in the scientific and regulatory literature on visibility, as well as in the Regional Haze Program. In particular, the deciview scale is used in the public perception studies that were considered in the past and current reviews to inform judgments about an appropriate degree of protection to be provided by a secondary NAAQS.
Particulate matter concentrations and light extinction in urban environments vary from hour-to-hour throughout the 24-hour day due to a combination of diurnal changes in meteorological conditions and systematic changes in emissions activity (e.g., rush hour traffic). Generally, low mixing heights at night and during the early morning hours tend to trap locally produced emissions, which are diluted as the mixing height increases due to heating during the day. Low temperatures and high relative humidity at night are conducive to the presence of ammonium nitrate particles and water growth by hygroscopic particles compared with the generally higher temperatures and lower relative humidity later in the day. These combine to make early morning the most likely time for peak urban light extinction. Superimposed on such systematic time-of-day variations are the effects of synoptic meteorology (i.e., those associated with changing weather) and regional-scale air quality that can generate peak light extinction impacts any time of day. The net effects of the systematic urban- and larger-scale variations are that peak daytime PM light extinction levels can occur any time of day, although in many areas they most often occur in early morning hours (U.S. EPA, 2010b, sections 3.4.2 and 3.4.3; Figures 3-9, 3-10, and 3-12).
This temporal pattern in urban areas contrasts with the general lack of a strong diurnal pattern in PM concentrations and light extinction in most Federal Class I areas, reflective of a relative lack of local sources as compared to urban areas. The use in the
Visibility is typically associated with daytime periods because people are outside more during the day than at night and there are more viewable scenes at a distance during the day than at night. The Policy Assessment recognizes, however, that physically PM light extinction behaves the same at night as during the day, enhancing the scattering of anthropogenic light, contributing to the “skyglow” within and over populated areas, adding to the total sky brightness, and contributing to the reduction in contrast of stars against the background. These effects produce the visual result of a reduction in the number of visible stars and the disappearance of diffuse or subtle phenomena such as the Milky Way. The extinction of starlight is a secondary and minor effect also caused by increased PM scattering and absorption.
However, there are significant and important differences between daytime and nighttime visual environments with regard to how light extinction per se relates to visual air quality (or visibility) and public welfare. First, daytime visibility has dominated the attention of those who have studied the visibility effects of air pollution, particularly in urban areas. As a result, little research has been conducted on nighttime visibility and the state of the science is not comparable to that associated with daytime visibility impairment. As noted in the Policy Assessment, no urban-focused preference or valuation studies providing information on public preferences for nighttime visual air quality have been identified (U.S. EPA, 2011a, p. 4-17). Second, in addition to air pollution, nighttime visibility is affected by the addition of light into the sight path from numerous sources, including anthropogenic light sources in urban environments such as artificial outdoor lighting, which varies dramatically across space, and natural sources including the moon, planets, and stars. Light sources and ambient light conditions are typically five to seven orders of magnitude dimmer at night than in sunlight. Moonlight, like sunlight, introduces light throughout an observer's sight path at a constant angle. On the other hand, dim starlight emanates from all over the celestial hemisphere while artificial lights are concentrated in cities and illuminate the atmosphere from below. These different light sources will yield variable changes in visibility as compared to what has been established for the daytime scenario, in which a single source, the sun, is by far the brightest source of light. Third, the human psychophysical response (e.g., how the human eye sees and processes visual stimuli) at night is expected to differ (U.S. EPA, 2009a, section 9.2.2).
Given the above, the Policy Assessment notes that the science is not available at this time to support adequate characterization specifically of nighttime PM light extinction conditions and the related effects on public welfare (U.S. EPA, 2011a, p. 4-18). Thus, the Policy Assessment focuses its assessments of PM visibility impacts in urban areas on daylight hours. For simplicity, and because perceptions and welfare effects from light extinction-related visual effects during the minutes of actual sunrise and sunset have not been explored, daylight hours are defined as those hours entirely after the local sunrise time and before the local sunset time.
In so doing, the Policy Assessment notes that the 24-hour averaging time used in the Regional Haze Program includes nighttime conditions (U.S. EPA, 2011a, p. 4-18). It also notes, however, that the goal of the Regional Haze Program is to address any manmade impairment of visibility without regard to distinctions between daylight and nighttime conditions. Moreover, because of the lack of strong diurnal patterns in most Federal Class I areas, both nighttime and daylight visibility are strongly correlated with 24-hour average visibility conditions, so a 24-hour averaging period is suitable for driving both daylight and nighttime visibility towards their natural conditions. Also, the focus on 24-hour average visibility allows the Regional Haze Program to make use of more practically obtained ambient speciated PM measurements of adequate accuracy than if a shorter averaging period were used, which is an important consideration especially given the remoteness of many Federal Class I area monitoring sites and given the low PM concentrations that must be measured accurately in such areas.
In addition, when natural conditions such as fog and rain cause poor visibility, it can be reasonably assumed that the light extinction properties of the air that are attributable to air pollution are not important from a public welfare perspective. Thus, it is appropriate to give special treatment to such periods when considering whether current PM
The roles that exposure duration and variations in visual air quality within any given exposure period play in determining the acceptability or unacceptability of a given level of visual air quality has not been investigated via preference studies. In the preference studies available for this review, subjects were simply asked to rate the acceptability or unacceptability of each image of a haze-obscured scene, without being provided any suggestion of assumed duration or of assumed conditions before or after the occurrence of the scene presented. Preference and/or valuation studies show that atmospheric visibility conditions can be quickly assessed and preferences determined. A momentary glance at an image of a scene (i.e., less than a minute) is enough for study participants to judge the acceptability or unacceptability of the viewed visual air quality conditions. Moreover, individual participants in general consistently judge the acceptability of same-scene images that differed only with respect to light extinction levels when these images were presented repeatedly for such short periods. That is, individuals generally did not say that a higher-light extinction image was acceptable while saying a lower-light extinction, same-scene image was unacceptable, even though they could not compare images side-to-side. However, the Policy Assessment does not have information about what assumptions, if any, the participants may have made about the duration of exposure in determining the acceptability of the images and EPA staff is unaware of any studies that characterize the extent to which different frequencies and durations of exposure to visibility conditions contribute to the degree of public welfare impact that occurs.
In the absence of such studies, the Policy Assessment considers a variety of circumstances that are commonly expected to occur in evaluating the potential impact of visibility impairment on the public welfare based on available information (U.S. EPA, 2011a, pp. 4-19 to 4-20). In some
Some people have mostly intermittent opportunities on a daily basis (e.g., during morning and/or afternoon commutes) to experience ambient visibility conditions because they spend much of their time indoors without access to windows. For such people a view of poor visual air quality during their morning commute may provide their perception of the day's visibility conditions until the next time they venture outside during daylight hours later or perhaps the next day. Other people have exposure to visibility conditions throughout the day, conditions that may differ from hour to hour. A day with multiple hours of visibility impairment would likely be judged as having a greater impact on their wellbeing than a day with just one such hour followed by clearer conditions.
As noted in the Policy Assessment, information regarding the fraction of the public that has only one or a few opportunities to experience visibility during the day, or on the role the duration of the observed visibility conditions has on wellbeing effects associated with those visibility conditions is not available (U.S. EPA, 2011a, p. 4-20). However, it is logical to conclude that people with limited opportunities to experience visibility conditions on a daily basis would receive the entire impact of the day's visual air quality based on the visibility conditions that occur during the short time period when they can see it. Since this group could be affected on the basis of observing visual air quality conditions for periods as short as one hour or less, and because during each daylight hour there are some people outdoors, commuting, or near windows, the Policy Assessment judges that it would be appropriate to use the maximum hourly value of PM light extinction during daylight hours for each day for purposes of evaluating the adequacy of the current suite of secondary standards. This approach would recognize that at least some but not all of the population of an area will actually be exposed to this worst hour and that some of the people who are exposed to this worst hour may not have an opportunity to observe clearer conditions in other hours if they were to occur. Moreover, because visibility conditions and people's daily activities on work/school days both tend to follow the same diurnal pattern day after day, those who are exposed only to the worst hour will tend to have this experience day after day.
For another group of observers, those who have access to visibility conditions often or continuously throughout the day, the impact of the day's visibility conditions on their welfare may be based on the varying visibility conditions they observe throughout the day. For this group, it might be that an hour with poor or “unacceptable” visibility can be offset by one or more other hours with clearer conditions. Based on these considerations, the Policy Assessment judges that it would also be appropriate to use a maximum multi-hour daylight period for evaluating the adequacy of the current suite of secondary standards (U.S. EPA, 2011a, p. 4-20).
The above discussion is based on what people see, which is determined by the extinction of light along the paths between observers and the various objects they view. A related but separate issue is what measurement period is relevant, if what will be measured is the light extinction property or the PM concentration of the local air at a fixed site. Light extinction conditions at a fixed site can change quickly (i.e., in less than a minute). Sub-hourly variations in light extinction determined at any point in the atmosphere are likely the result of small-scale spatial pollution features (i.e., high concentration plumes that have just been generated in the immediate vicinity due to local sources or that have been transported by the wind across that point). These small-scale pockets of air causing short periods of higher light extinction at the fixed site likely do not determine the visual effect for scenes with longer sight paths. In contrast, atmospheric sight path-averaged light extinction which is pertinent to visibility impacts generally changes more slowly (i.e., tens of minutes generally), because a larger air mass must be affected by a broader set of emission sources or the larger air mass must be replaced by a cleaner or dirtier air mass due to the wind operating over time. At typical wind speeds found in U.S. cities, an hour corresponds to a few tens of kilometers of air flowing past a point, which is similar to sight path lengths of interest in urban areas. Based on the above considerations, the Policy Assessment concludes hourly average light extinction would generally be reasonably representative of the net visibility effect of the spatial pattern of light extinction levels, especially along site paths that generally align with the wind direction (U.S. EPA, 2011a, p. 4-21).
As noted in the Integrated Science Assessment, there are two main types of studies that evaluate the public perception of urban visibility impairment: Urban visibility preference studies and urban visibility valuation studies. As noted in the Integrated Science Assessment, “[b]oth types of studies are designed to evaluate individuals' desire (or demand) for good VAQ where they live, using different metrics to evaluate demand. Urban visibility preference studies examine individuals' demand by investigating what amount of visibility degradation is unacceptable while economic studies examine demand by investigating how much one would be willing to pay to improve visibility.” Because of the limited number of new studies on urban visibility valuation, the Integrated Science Assessment cites to the discussion in the 2004 Criteria Document of the various methods one can use to determine the economic
Contingent valuation studies are a type of stated preference study that measures the strength of preferences and expresses that preference in dollar values. Contingent valuation studies often include payment vehicles that require respondents to consider implementation costs and their ability to pay for visibility improvements in their responses. This study design aspect is critical because the EPA cannot consider implementations costs in setting either primary or secondary NAAQS. Therefore in considering the information available to help inform the standard-setting process, the EPA has focused on the public perception studies that do not embed consideration of implementation costs. Nonetheless, the EPA recognizes that valuation studies do provide additional evidence that the public is experiencing losses in welfare due to visibility impairment.
In order to identify levels of visibility impairment appropriate for consideration in setting secondary PM NAAQS to protect the public welfare, the Visibility Assessment comprehensively examined information that was available in this review regarding people's stated preferences regarding acceptable and unacceptable visual air quality.
Light extinction is an atmospheric property that by itself does not directly translate into a public welfare effect. Instead, light extinction becomes meaningful in the context of the impact of differences in visibility on the human observer. This has been studied in terms of the acceptability or unacceptability expressed for the visibility impact of a given level of light extinction by a human observer. The perception of the visibility impact of a given level of light extinction occurs in conjunction with the associated characteristics and lighting conditions of the viewed scene.
Much of what is known about the acceptability of levels of visibility comes from survey studies in which participants were asked questions about their preference or the value they place on various visibility levels as displayed to them in scenic photographs and/or WinHaze images with a range of known light extinction levels. Urban visibility preference studies for four urban areas were reviewed in the Visibility Assessment (U.S. EPA, 2010b, chapter 2) to assess the light extinction levels judged by the participant to have acceptable visibility for those particular scenes.
The reanalysis of urban preference studies conducted in the Visibility Assessment for this review includes three completed western urban visibility preference survey studies plus a pair of smaller focus studies designed to explore and further develop urban visibility survey instruments. The three western studies included one in Denver, Colorado (Ely et al., 1991), one in the lower Fraser River valley near Vancouver, British Columbia (BC), Canada (Pryor, 1996), and one in Phoenix, Arizona (BBC Research & Consulting, 2003). A pilot focus group study was also conducted for Washington, DC (Abt Associates Inc., 2001). In response to an EPA request for public comment on the Scope and Methods Plan (74 FR 11580, March 18, 2009), comments were received (Smith, 2009) about the results of a new focus group study of scenes from Washington, DC that had been conducted on subjects from both Houston, Texas and Washington, DC using scenes, methods and approaches similar to the method and approach employed in the EPA pilot study (Smith and Howell, 2009). When taken together, these studies from the four different urban areas included a total of 852 individuals, with each individual responding to a series of questions answered while viewing a set of images of various urban visual air quality conditions.
The approaches used in the four studies are similar and are all derived from the method first developed for the Denver urban visibility study. In particular, the studies all used a similar group interview type of survey to investigate the level of visibility impairment that participants described as “acceptable.” In each preference study, participants were initially given a set of “warm up” exercises to familiarize them with how the scene in the photograph or image appears under different VAQ conditions. The participants next were shown 25 randomly ordered photographs (images), and asked to rate each one based on a scale of 1 (poor) to 7 (excellent). They were then shown the same photographs or images again, in the same order, and asked to judge whether each of the photographs (images) would violate what they would consider to be an appropriate urban visibility standard (i.e. whether the level of impairment was “acceptable” or “unacceptable”. The term “acceptable” was not defined, so that each person's response was based on his/her own values and preferences for VAQ. However, when answering this question, participants were instructed to consider the following three factors: (1) The standard would be for their own urban area, not a pristine national park area where the standards might be stricter; (2) The level of an urban visibility standard violation should be set at a VAQ level considered to be unreasonable, objectionable, and unacceptable visually; and (3) Judgments of standards violations should be based on visibility only, not on health effects. While the results differed among the four urban areas, results from a rating exercise show that within each preference study, individual survey participants consistently distinguish between photos or images representing different levels of light extinction, and that more participants rate as acceptable images representing lower levels of light
Given the similarities in the approaches used, it is reasonable to compare the results to identify overall trends in the study findings and to conclude that this comparison can usefully inform the selection of a range of levels for use in further analyses. However, variations in the specific materials and methods used in each study introduce uncertainties that should also be considered when interpreting the results of these comparisons. Key differences between the studies include: (1) Scene characteristics; (2) image presentation methods (e.g., projected slides of actual photos, projected images generated using WinHaze (a significant technical advance in the method of presenting visual air quality conditions), or use of a computer monitor screen; (3) number of participants in each study; (4) participant representativeness of the general population of the relevant metropolitan area; and (5) specific wording used to frame the questions used in the group interview process.
In the Visibility Assessment, each study was evaluated separately and figures developed to display the percentage of participants that rated the visual air quality depicted in each photograph as “acceptable.” Ely et al. (1991) introduced a “50% acceptability” criterion analysis of the Denver preference study results. The 50 percent acceptability criterion is designed to identify the visual air quality level (defined in terms of deciviews or light extinction) that best divides the photographs into two groups: Those with a visual air quality rated as acceptable by the majority of the participants, and those rated not acceptable by the majority of participants. The Visibility Assessment adopted the criterion as a useful index for comparison between studies. The results of each individual analysis were then combined graphically to allow for visual comparison. This information was then carried forward into the Policy Assessment. Figure 5 presents the graphical summary of the results of the studies in the four cities and draws on results previously presented in Figures 2-3, 2-5, 2-7, and 2-11 of chapter 2 in the Visibility Assessment. Figure 5 also contains lines at 20 dv and 30 dv that generally identify a range where the 50 percent acceptance criteria occur across all four of the urban preference studies (U.S. EPA, 2011a, p. 4-24). Out of the 114 data points shown in Figure 5, only one photograph (or image) with a visual air quality below 20 dv was rated as acceptable by less than 50 percent of the participants who rated that photograph.
As Figure 5 above shows, each urban area has a separate and unique response curve that appears to indicate that it is distinct from the others. These curves are the result of a logistical regression analysis using a logit model of the greater than 19,000 ratings of haze images as acceptable or unacceptable. The model results can be used to
Based on the composite results and the effective range of 50th percentile acceptability across the four urban preference studies shown in Figure 5 and Table 4-1 of the Policy Assessment, benchmark levels of (total) light extinction were selected by the Policy Assessment in a range from 20 dv to 30 dv (75 to 200 Mm
These three benchmark values provide a low, middle, and high set of light extinction conditions that are used to provisionally define daylight hours with urban haze conditions that have been judged unacceptable by at least 50% of the participants in one or more of these preference studies. As discussed above, PM light extinction is taken to be (total) light extinction minus the Rayleigh scatter,
In characterizing the Policy Assessment's confidence in each CPL and across the range, a number of issues were considered (U.S. EPA, 2011a, p. 4-26). Looking first at the two studies that define the upper and lower bounds of the range, the Policy Assessment considers whether they represent a true regional distinction in preferences for urban visibility conditions between western and eastern U.S. There is little information available to help evaluate the possibility of a regional distinction especially given that there have been preference studies in only one eastern urban area. Smith and Howell (2009) found little difference in preference response to Washington, DC haze photographs between the study participants from Washington, DC and those from Houston, Texas.
In further considering what factors could explain the observed differences in preferences across the four urban areas, the Policy Assessment notes that the urban scenes used in each study had different characteristics (U.S. EPA, 2011a, p. 4-26). For example, each of the western urban visibility preference study scenes included mountains in the background while the single eastern urban study did not. It is also true that each of the western scenes included objects at greater distances from the camera location than in the eastern study. There is no question that objects at a greater distance have a greater sensitivity to perceived visibility changes as light extinction is changed compared to otherwise similar scenes with objects at a shorter range. This alone might explain the difference between the results of the eastern study and those from the western urban studies. Having scenes with the object of greatest intrinsic value nearer and hence less sensitive in the eastern urban area compared with more distant objects of greatest intrinsic value in the western urban areas could further explain the difference in preference results.
Another question considered was whether the high CPL value that is based on the eastern preference results is likely to be generally representative of urban areas that do not have associated mountains or other valued objects visible in the distant background. Such areas would include the middle of the country and many areas in the eastern U.S., and possibly some areas in the western U.S. as well. In order to examine this issue, an effort would have to be made to see if scenes in such areas could be found that would be generally comparable to the western scenes (e.g., scenes that contain valued scenic elements at more sensitive distances than that used in the eastern study). This is only one of a family of issues concerning how exposure to urban scenes of varying sensitivity affects public perception for which no preference study information is currently available. Based on the currently available information, the Policy Assessment concludes that the high end of the CPL range (30 dv) is an appropriate level to consider (U.S. EPA, 2011a, p. 4-27).
With respect to the low end of the range, the Policy Assessment considered factors that might further refine its understanding of the robustness of this level. The Policy Assessment concludes that additional urban preference studies, especially with a greater variety in types of scenes, could help evaluate whether the lower CPL value of 20 dv is generally supportable (U.S. EPA, 2011a, p. 4-27). Further, the reason for the noisiness in data points around the curves apparent in both the Denver and British Columbia results compared to the smoother curve fit of Phoenix study results could be explored. One possible
Based on the above considerations, and recognizing the limitations in the currently available information, the Policy Assessment concludes that it is reasonable to consider a range of CPL values including a high value of 30 dv, a mid-range value of 25 dv, and a low value of 20 dv (U.S. EPA, 2011a, p. 4-27). Based on its review of the second draft Policy Assessment, CASAC also supports this set of CPLs for consideration by the EPA in this review. CASAC notes that these CPL values were based on all available visibility preference data and that they bound the study results as represented by the 50 percent acceptability criteria. CASAC concludes that this range of levels is “adequately supported by the evidence presented” (Samet, 2010d, p. iii).
As noted above, visibility impairment occurs during periods with fog or precipitation irrespective of the presence or absence of PM. While it is a popular notion that areas with many foggy or rainy days are “dreary” places to live compared to areas with more sunny days per year, the Policy Assessment has no basis for taking into account how the occurrence of such days might modify the effect of pollution-induced hazy days on public welfare. It is logical that periods with naturally impaired visibility due to fog or precipitation should not be treated as having PM-impaired visibility. Moreover, depending on the specific indicator, averaging time, and measurement approach used for the NAAQS, foggy conditions might result in measured or calculated indicator values that are higher than the light extinction actually caused by PM.
The EPA recognizes that not all periods with relative humidity above 90 percent have fog or precipitation. Removing those hours from consideration for a secondary PM standard would involve a tradeoff between the benefits of not including many of the hours with meteorological causes of visibility impacts and the loss of public welfare protection of not including some hours with high relative humidity without fog or precipitation, where the growth of hygroscopic PM into large solution droplets results in enhanced PM visibility impacts. For the 15 urban areas included in the assessment for which meteorological data were obtained to allow an examination of the co-occurrence of high relative humidity and fog or precipitation, a 90 percent relative humidity cutoff criterion is effective in that on average less than 6 percent of the daylight hours are removed from consideration, yet those hours have on average ten times the likelihood of rain, six times the likelihood of snow/sleet, and 34 times the likelihood of fog compared with hours with 90 percent or lower relative humidity. Based on these findings, the Policy Assessment concludes that it is appropriate that a sub-daily standard intended to protect against PM-related visibility impairment would be defined in such a way as to exclude hours with relative humidity greater than approximately 90 percent, regardless of measured values of light extinction or PM (U.S. EPA, 2011a, p. 4-29).
Recent visibility conditions have been characterized in the Policy Assessment in terms of PM-related light extinction
The Policy Assessment repeats the Visibility Assessment-type modeling based on PM
The Policy Assessment also conducted analyses to assess the likelihood that PM-related visibility impairment would exceed the various CPLs for a scenario based on simulating just meeting the current suite of PM
In these analyses, the Policy Assessment has estimated both PM
Taking into account the above considerations, the Policy Assessment concludes that the available information in this review, as described above and in the Visibility Assessment and Integrated Science Assessment, clearly calls into question the adequacy of the current suite of PM
This conclusion is based in part on the large percentage of days, in many urban areas, that exceed the range of CPLs identified for consideration under simulations of conditions that would just meet the current suite of PM
Further, the Policy Assessment concludes that use of the current indicator of PM
Thus, in addition to concluding that the available information clearly calls into question the adequacy of the protection against PM-related visibility impairment afforded by the current suite of PM
Based on its review of the second draft Policy Assessment, CASAC concludes that the “currently available information clearly calls into question the adequacy of the current standards and that consideration should be given to revising the suite of standards to provide increased public welfare protection” (Samet, 2010d, p. iii). CASAC notes that the detailed estimates of hourly PM light extinction associated with just meeting the current standards “clearly demonstrate that current standards do not protect against levels of visual air quality which have been judged to be unacceptable in all of the available urban visibility preference studies.” Further, CASAC states, with respect to the current suite of secondary PM
In considering whether the current suite of secondary PM
Having reached this conclusion, the Administrator also recognizes that the current indicator of PM
As described below, the Policy Assessment considers three indicators: The current PM
The Policy Assessment concludes that consideration of the use of either directly measured PM
The basis for considering each of these three indicators is discussed below. The discussion also addresses monitoring data requirements for directly measured PM
PM
The overall performance of 1-hour average PM
As part of the Visibility Assessment, an assessment was conducted that estimated PM
PM light extinction is the major contributor to light extinction, which is the property of the atmosphere that is most directly related to visibility effects. It differs from light extinction by the nearly constant contributions for Rayleigh (or clean air) light scattering and the minor contributions by NO
As part of the Visibility Assessment, an assessment was conducted that estimated PM
In evaluating whether direct measurement of PM
The CASAC AAMMS also commented on the capabilities of currently available instruments, and expressed optimism regarding the near-term development of even better instruments for such measurement than are now commercially available. The CASAC AAMMS advised against choosing any currently available commercial instrument, or even a general measurement approach, as an FRM because to do so could discourage development of other potentially superior approaches. Instead, the CASAC AAMMS recommended that EPA develop performance-based approval criteria for direct measurement methods in order to put all approaches on a level playing field. Such criteria would necessarily include procedures and pass/fail requirements for demonstrating that the performance criteria have been met. For example, instruments might be required to demonstrate their performance in a wind tunnel, where the concentration of PM
As discussed above in section VI.B.1 above, PM
Alternatively, a conceptually similar approach could be applied in urban areas on an hourly or multi-hour basis. Applying this conceptual approach on a sub-daily basis would involve translating 24-hour speciation data into hourly estimates of species concentrations, and using 24-hour average species concentrations in conjunction with hourly PM
The approach used to generate hourly PM
While the complexity of the approach used in the Visibility Assessment was reasonable for assessment purposes at 15 urban areas, the Policy Assessment recognizes that a relatively more simple approach would be more straightforward and have greater transparency, and thus should be considered for purposes of a national standard.
The simplified approaches examined were aimed at calculating hourly PM
The hourly PM
In addition, the Policy Assessment notes that there are variations of these simplified approaches that may also be appropriate to consider. For example, some variations that may improve the correlation with actual ambient light extinction in certain areas of the country include the use of the split-component mass extinction efficiency approach from the revised IMPROVE algorithm,
As mentioned above, as part of the Visibility Assessment, an assessment was conducted of PM
The inputs that would be necessary to use either simplified approach to calculate a sub-daily PM
The CSN measurements have a strong history of being reviewed by CASAC technical committees, both during their initial deployment about ten years ago (Mauderly 1999a,b) and during the more recent transition to carbon sampling that is consistent with the IMPROVE protocols (Henderson, 2005c). Because the methods for the CSN are well documented in a nationally implemented Quality Assurance Project Plan (QAPP) and accompanying standard operating procedures (SOPs), are validated through independent performance testing, and are used to meet multiple data objectives (e.g., source apportionment, trends, and as an input to health studies), consideration
Since 2008, EPA has approved several PM
This section has addressed the types of measurements that would be necessary to support a calculated PM
Taking the above considerations and CASAC's advice into account, the Policy Assessment concludes that consideration should be given to establishing a new calculated PM
Further, the Policy Assessment concludes that consideration could be given to defining a calculated PM
Based on its review of the second draft Policy Assessment, CASAC stated that it “overwhelmingly * * * would prefer the direct measurement of light extinction,” recognizing it as the property of the atmosphere that most directly relates to visibility effects (Samet, 2010d, p. iii). CASAC noted that “[I]t has the advantage of relating directly to the demonstrated harmful welfare effect of ambient PM on human visual perception.” However, CASAC also concludes that the calculated PM
In reaching a proposed conclusion on the appropriate indicator for a standard intended to protect against PM-related visibility impairment, as an initial matter, the Administrator concurs with CASAC that a directly measured PM light extinction indicator would provide the most direct link between PM in the ambient air and PM-related light extinction. However, she also recognizes that while instruments currently exist that can directly measure PM
Taking the above considerations and CASAC advice into account, the Administrator provisionally concludes a new calculated PM
Based on the above considerations, the Administrator proposes to set a distinct secondary standard for PM
The Administrator solicits comment on all aspects of the proposed indicator. In particular, the Administrator solicits comment on the proposed use of a PM
Consideration of appropriate averaging times for use in conjunction with a PM
As an initial matter, in considering sub-daily averaging times, the Policy Assessment took into account what is known from available studies concerning how quickly people experience and judge visibility conditions, the possibility that some fraction of the public experiences infrequent or short periods of exposure to ambient visibility conditions, and the typical rate of change of the path-averaged PM light extinction over urban areas. While perception of change in visibility can occur in less than a minute, meaningful changes to path-averaged light extinction occur more slowly. As discussed above and in section 4.2.1 of the Policy Assessment, one hour is a short enough averaging period to result in indicator values that are close to the maximum one- or few-minute visibility impact that an observer could be exposed to within the hour. Further, a 1-hour averaging time could reasonably characterize the visibility effects experienced by the segment of the population that experiences infrequent short-term exposures during peak visibility impairment periods in each area/site. Based on the above considerations, the initial analyses conducted in the Policy Assessment as part of the Visibility Assessment to support consideration of alternative standards focused on a 1-hour averaging time.
In its review of the first draft Policy Assessment, CASAC agreed that a 1-hour averaging time would be appropriate to consider, noting that PM effects on visibility can vary widely and rapidly over the course of a day and such changes are almost instantaneously perceptible to human observers (Samet, 2010c, p. 19). The Policy Assessment notes that this view related specifically to a standard defined in terms of a directly measured PM light extinction indicator, in that CASAC also noted that a 1-hour averaging time is well within the instrument response times of the various currently available and developing optical monitoring methods. However, CASAC also advised that if a PM
Thus, the Policy Assessment has considered multi-hour averaging times, on the order of a few hours as illustrated by a 4-hour averaging time. Such averaging times might reasonably characterize the visibility effects experienced by the segment of the population who have access to visibility conditions often or continuously throughout the day. For this segment of the population, it may be that their perception of visual air quality reflects some degree of offsetting an hour with poor visual air quality with one or more hours of clearer visual conditions. Further, the Policy Assessment recognizes that a multi-hour averaging time would have the effect of averaging away peak hourly visibility impairment, which can change significantly from one hour to the next (U.S. EPA, 2011a, p. 4-53; U.S. EPA, 2010b, Figure 3-12). In considering either 1-hour or multi-hour averaging times, the Policy Assessment recognizes that no data are available with regard to how the duration and variation of time a person spends outdoors during the daytime impacts his or her judgment of the acceptability of different degrees of visibility impairment. As a consequence, it is not clear to what degree, if at all, the protection levels found to be acceptable in the public preference studies would change for a multi-hour averaging time as compared to a 1-hour averaging time. Thus, the Policy Assessment concludes that it is appropriate to consider a 1-hour or multi-hour (e.g., 4-hour) averaging time as the basis for a sub-daily standard defined in terms of a calculated PM
Additionally, as part of the review of data from all continuous FEM PM
In considering an appropriate diurnal period for use in conjunction with a sub-daily averaging time, the Policy Assessment recognizes that nighttime visibility impacts, described in the Integrated Science Assessment (U.S. EPA, 2009a, section 9.2.2) are significantly different from daytime impacts and are not sufficiently well understood to be included at this time. As a result, consistent with CASAC advice (Samet, 2010c, p. 4), the Policy Assessment concludes that it would be appropriate to define a sub-daily standard in terms of only daylight hours at this time (U.S. EPA, 2011a, p. 4-54). In the Visibility Assessment, daylight hours were defined to be those morning hours having no minutes prior to local sunrise and afternoon hours having no minutes after local sunset. This definition ensures the exclusion of periods of time where the sun is not the primary outdoor source of light to illuminate scenic features.
In considering the well-known interaction of PM with ambient relative humidity conditions, the Policy Assessment recognizes that PM is not generally the primary source of visibility impairment during periods with fog or precipitation. In order to reduce the probability that hours with a high degree of visibility impairment caused by fog or precipitation are unintentionally used for purposes of determining compliance with a standard, the Policy Assessment determined that a relative humidity screen that excludes daylight hours with average relative humidity above approximately 90 percent is appropriate (U.S. EPA, 2001, pp. 4-54 to 4-55; see also U.S. EPA, 2010b, section 3.3.5, Appendix G). For example, for the 15 urban areas
As discussed in section 4.3.1 of the Policy Assessment and below, there are significant reasons to consider using PM
To determine whether PM
Taking the above considerations and CASAC's advice into account, the Policy Assessment concludes that it is appropriate to consider in this review a 24-hour averaging time, in conjunction with a calculated PM
A 24-hour average calculated PM
Further, the Policy Assessment concludes that it would also be appropriate to consider a multi-hour, sub-daily averaging time, for example a period of 4 hours, in conjunction with a calculated PM
As noted above, in its review of the first draft Policy Assessment, CASAC concludes that PM effects on visibility can vary widely and rapidly over the course of a day and such changes are almost instantaneously perceptible to human observers (Samet, 2010c, p. 19). Based in part on this consideration, CASAC agreed that a 1-hour averaging time would be appropriate to consider in conjunction with a directly measured PM light extinction indicator, noting that a 1-hour averaging time is well within the instrument response times of
In considering this advice, the Policy Assessment first notes that CASAC did not have the benefit of EPA's recent assessment of the data quality issues associated with the use of continuous FEMs as the basis for hourly PM
In reaching a proposed conclusion on the appropriate averaging time for a standard intended to protect against PM-related visibility impairment, the Administrator has taken into account the information discussed above with regard to analyses and conclusions presented in the final Policy Assessment as well as the views of CASAC based on its reviews of the first and second drafts of the Policy Assessment. As an initial matter, the Administrator recognizes that hourly or sub-daily, multi-hour averaging times, within daylight hours and excluding hours with relative humidity above approximately 90 percent, are more directly related than a 24-hour averaging time to the short-term nature of the perception of PM-related visibility impairment and the relevant exposure periods for segments of the viewing public. On the other hand, she recognizes that data quality uncertainties have recently been associated with currently available instruments that would be used to provide the hourly PM
In considering the information and analyses related to consideration of a 24-hour averaging time, the Administrator recognizes that the Policy Assessment concludes that PM
Further, in light of the desirability of a sub-daily averaging time, the Administrator solicits comment on a sub-daily (e.g., 4-hour) averaging time and related data quality issues associated with currently available monitoring instrumentation. In so doing, the Administrator notes that CASAC's advice on averaging times was predicated in part on the capabilities of available monitoring instrumentation as CASAC understood them when it provided its advice.
The “form” of a standard defines the air quality statistic that is to be compared to the level of the standard in determining whether the standard is achieved. The form of the current 24-hour PM
The urban visibility preference studies that provided results leading to the range of CPLs being considered in this review offer no information that addresses the frequency of time that visibility levels should be below those values. Given this lack of information, and recognizing that the nature of the public welfare effect is one of aesthetics and/or feelings of well-being, the Policy Assessment concludes that it would not be appropriate to consider eliminating all exposures above the level of the standard and that allowing some number of hours/days with reduced visibility can reasonably be considered (U.S. EPA, 2011a, p. 4-59). In the Visibility Assessment, 90th, 95th, and 98th percentile forms were assessed for alternative PM light extinction standards (U.S. EPA, 2010b, section 4.3.3). In considering these alternative percentiles, the Policy Assessment notes that the Regional Haze Program targets the 20 percent most impaired days for improvements in visual air quality in Federal Class I areas. If improvement in the 20 percent most impaired days were similarly judged to be appropriate for protecting visual air quality in urban areas, a percentile well above the 80th percentile would be appropriate to increase the likelihood that all days in this range would be improved by control strategies intended to attain the standard. A focus on improving the 20 percent most impaired days suggests that the 90th percentile, which represents the median of the distribution of the 20 percent worst days, would be an appropriate form to consider. Strategies that are implemented so that 90 percent of days have visual air quality that is at or below the level of the standard would reasonably be expected to lead to improvements in visual air quality for the 20 percent most impaired days. Higher percentile values within the range assessed could have the effect of limiting the occurrence of days with peak PM-related light extinction in urban areas to a greater degree. In considering the limited information available from the public preference studies, the Policy Assessment finds no basis to conclude that it would be appropriate to consider limiting the occurrence of days with peak PM-
Another aspect of the form that was considered in the Visibility Assessment for a sub-daily (i.e., 1-hour) averaging time is whether to include all daylight hours or only the maximum daily daylight hour. This consideration would also be relevant for a multi-hour (e.g., 4-hour) averaging time, although such an analysis was not included in the Visibility Assessment. The maximum daily daylight 1-hour or multi-hour form is most directly protective of the welfare of people who have limited, infrequent or intermittent exposure to visibility during the day (e.g., during commutes), but spend most of their time without an outdoor view. For such people a view of poor visibility during their morning commute may represent their perception of the day's visibility conditions until the next time they venture outside during daylight, which may be hours later or perhaps the next day. Other people have exposure to visibility conditions throughout the day. For those people, it might be more appropriate to include every daylight hour in assessing compliance with a standard, since it is more likely that each daylight hour could affect their welfare.
The Policy Assessment does not have information regarding the fraction of the public that has only one or a few opportunities to experience visibility during the day, nor does it have information on the role the duration of the observed visibility conditions has on wellbeing effects associated with those visibility conditions. However, it is logical to conclude that people with limited opportunities to experience visibility conditions on a daily basis would experience the entire impact associated with visibility based on their short-term exposure. The impact of visibility for those who have access to visibility conditions often or continuously during the day may be based on varying conditions throughout the day.
In light of these considerations, the Visibility Assessment analyses included both the maximum daily hour and the all daylight hours forms. The Policy Assessment observed a close correspondence between the level of protection afforded for all 15 urban areas in the assessment by the maximum daily daylight 1-hour approach using the 90th percentile form and the all daylight hours approach combined with the 98th percentile form (U.S. EPA, 2010b, section 4.1.4). On this basis, the Policy Assessment notes that the reductions in visibility impairment required to meet either form of the standard would provide protection to both fractions of the public (i.e., those with limited opportunities and those with greater opportunities to view PM-related visibility conditions). The Policy Assessment also notes that CASAC generally supported consideration of both types of forms without expressing a preference based on its review of information presented in the second draft Policy Assessment (Samet, 2010d, p. 11).
In conjunction with a calculated PM
Based on its review of the second draft Policy Assessment, CASAC did not provide advice as to a specific form that would be appropriate, but took note of the alternative forms considered in that document and encouraged further analyses in the final Policy Assessment that might help to clarify a basis for selecting from within the range of forms identified. In considering the available information and the conclusions in the final Policy Assessment in light of CASAC's comments, the Administrator provisionally concludes that a 90th percentile form, averaged over 3 years, is appropriate, and proposes such a form in conjunction with a PM
In considering alternative levels for a new standard that would provide requisite protection against PM-related visibility impairment primarily in urban areas, the Policy Assessment has taken into account the evidence- and impact-based considerations discussed above and in section 4.2.1 of the Policy Assessment, with a focus on the results of public perception and attitude surveys related to the acceptability of various levels of visual air quality and on the important limitations in the design and scope of such available studies. The Policy Assessment considered this information in the context of a standard defined in terms of a calculated PM
As part of the Policy Assessment's assessment of the adequacy of the current standards, summarized in section VI.B. above and in Policy Assessment section 4.2.1, it interpreted the results from the visibility preferences studies conducted in four urban areas to define a range of low, middle, and high CPLs for a sub-daily standard (e.g., 1- to 4-hour averaging time) of 20, 25, and 30 dv, which are approximately equivalent to PM
As an initial matter, in considering alternative levels for a sub-daily standard based directly on the four preference study results, the Policy Assessment notes that the individual
In considering potential alternative levels for a 24-hour standard, the Policy Assessment explores various approaches to adjusting the CPLs derived directly from the preference studies, as presented and discussed in Appendix G of the Policy Assessment, especially section G-5. These various approaches, based on analyses of 2007-2009 data from the 15 urban areas assessed in the Visibility Assessment, focused on estimating CPLs for a 24-hour standard that would provide generally equivalent protection as that provided by a 4-hour standard with CPLs of 20, 25, and 30 dv. In so doing, staff recognized that there are multiple approaches for estimating generally equivalent levels on a city-specific or national basis, and that the inherent spatial and temporal variability in relative humidity and fine particle composition across cities leads to a set of alternative estimates of levels that may be construed as being generally equivalent on a national basis.
In conducting these analyses, staff initially expected that the values of 24-hour average PM
Some of the approaches used in these analyses focused on comparing 24-hour and 4-hour light extinction values in each of the 15 urban areas, whereas other approaches focused on comparisons based on using aggregated data across the urban areas. Two of these approaches, which used regressions of city-specific annual 90th percentile light extinction values or 3-year light extinction design values, gave nearly identical results and were considered by staff to be most appropriate for further consideration. These approaches (shown in U.S. EPA, 2011a, Appendix G, Figures G-7 and G-8, referred to as Approaches A and B) were preferred by staff based on the high R
Two of the approaches yielded not only estimates of generally equivalent levels on an aggregated basis but also city-specific estimates (referred to as Approaches C and E in Appendix G) that showed greater variability than the aggregated estimates. In all cases, the range of city-specific estimates of generally equivalent 24-hour levels included the 4-hour level for each of the CPLs of 20, 25, and 30 dv (as shown in Tables G-7 and G-8, Appendix G of the Policy Assessment, for Approaches C and E, respectively). Looking more broadly at these results could support consideration of using the same CPL for a 24-hour standard as for a 4-hour standard, recognizing that there is no one approach that can most closely identify a generally equivalent 24-hour standard level in each urban area for each CPL. The use of such an unadjusted CPL for a 24-hour standard would place more emphasis on the relatively high degree of spatial and temporal variability in relative humidity and fine particle composition observed in urban areas across the country, so as to reduce the potential of setting a 24-hour standard level that would require more than the intended degree of protection in some areas.
In more broadly considering alternative standard levels that would be appropriate for a nationally applicable secondary standard focused on protection from PM-related urban visibility impairment based on either a 24-hour or multi-hour, sub-daily (e.g., 4-hour) averaging time, the Policy Assessment was mindful of the important limitations in the available evidence from public preference studies. While the Policy Assessment concluded, consistent with CASAC advice, that it is appropriate to consider a distinct secondary PM
Given the uncertainties and limitations noted above, the EPA broadly solicits comment on the strengths and limitations associated with these preference studies and the use of these studies to inform the selection of a range of levels that could be used to provide an appropriate degree of public welfare protection when combined with the other elements of the standard (i.e. indicator, form and averaging time). In particular, the EPA solicits comment on the following specific aspects of the public preference studies and on how these studies should appropriately be considered in this review. Recognizing that all of these studies evaluated a 50 percent acceptability criterion as the basis for reaching judgments in the context of each study, the EPA requests comment on the extent to which this criterion is an appropriate basis for establishing target protection levels in the context of establishing a distinct secondary NAAQS to address PM-related visibility impairment in urban areas. Recognizing that these studies vary in the extent to which the study participants may be representative of the broader study area population, the EPA requests comment on how this aspect of the study designs should appropriately be weighed in the context of considering these studies in reaching proposed conclusions on a distinct secondary NAAQS. The EPA also solicits comment on the extent to which the ranges of VAQ levels presented to participants in each of the studies may have influenced study results and on how this aspect of the study designs should appropriately be weighed in the context of considering these studies in the context of this review.
As in past reviews, the EPA is considering a national visibility standard in conjunction with the Regional Haze Program as a means of achieving appropriate levels of protection against PM-related visibility impairment in urban, non-urban, and Federal Class I areas across the country. The EPA recognizes that programs implemented to meet a national standard focused primarily on the visibility problems in urban areas can be expected to improve visual air quality in surrounding non-urban areas as well, as would programs now being developed to address the requirements of the Regional Haze Program established for protection of visual air quality in Federal Class I areas. The EPA also believes that the development of local programs, such as those in Denver and Phoenix, can continue to be an effective and appropriate approach to provide additional protection, beyond that afforded by a national standard, for unique scenic resources in and around certain urban areas that are particularly highly valued by people living in those areas.
Based on the above considerations, the Policy Assessment concludes that it is appropriate to give primary consideration to alternative standard levels toward the upper end of the ranges identified above for 24-hour and sub-daily standards, respectively (U.S. EPA, 2011a, p. 4-63). Thus, the Policy Assessment concludes it is appropriate to consider the following alternative levels: A level of 28 dv or somewhat below, down to 25 dv, for a standard defined in terms of a calculated PM
Based on the above considerations, taking into account the conclusions in the Policy Assessment and the extent to which those conclusions reflected consideration of CASAC advice during the development of the Policy Assessment, as an initial matter, the Administrator provisionally concludes that it is appropriate to establish a target level of protection—for a standard defined in terms of a PM
In light of these provisional conclusions, the Administrator proposes to set a new 24-hour standard (defined in terms of a PM
Finally, as we have indicated, the information available for the Administrator to consider when setting the secondary PM standard raises a number of uncertainties. While CASAC supported moving forward with a new standard on the basis of the available information, CASAC also recognized these uncertainties, referencing the discussion of key uncertainties and areas for future research in the second draft of the Policy Assessment. In discussing areas of future research, CASAC stated that: “The range of 50% acceptability values discussed as possible standards are based on just four studies (Figure 4-2), which, given the large spread in values, provide only limited confidence that the benchmark candidate protection levels cover the appropriate range of preference values. Studies using a range of urban scenes (including, but not limited to, iconic scenes—“valued scenic elements” such as those in the Washington DC study), should also be considered.” (Samet, 2010d, p. 12). We invite comment on how the Administrator should weigh those uncertainties as well as any additional comments and information to inform her consideration of these uncertainties.
In the 2006 review, the Administrator concluded that there was insufficient information to consider a distinct secondary standard based on PM-related impacts to ecosystems, materials damage and soiling, and climatic and radiative processes (71 FR 61144, October 17, 2006). Specifically, there was a lack of evidence linking various non-visibility welfare effects to specific levels of ambient PM. To provide a level of protection for welfare-related effects, the secondary standards were set equal to the revised primary standards to directionally improve the level of protection afforded vegetation, ecosystems, and materials (71 FR 61210, October 17, 2006).
In that review, the 2004 AQCD concluded that regardless of size fraction, particles containing nitrates and sulfates have the greatest potential for widespread environmental significance (U.S. EPA, 2004, sections 4.2.2 and 4.2.3.1). Considerable supporting evidence was available that indicated a significant role of oxides of nitrogen and sulfur, and their transformation products in acidification and nutrient enrichment of terrestrial and aquatic ecosystems (71 FR 61209, October 17, 2006). The recognition of these ecological effects, coupled with other considerations detailed below, led EPA to initiate a joint review of the secondary NO
This section presents the Policy Assessment's conclusions with regard to the current suite of secondary PM standards to protect against non-visibility PM-related welfare effects. Specifically, the Policy Assessment has assessed the relevant information related to effects of atmospheric PM on the environment, including effects on climate, ecological effects, and materials. Non-visibility welfare-based effects of oxides of nitrogen and sulfur are divided between two NAAQS reviews; (1) PM NAAQS review and, (2) the joint secondary NAAQS review for oxides of nitrogen (NO
In reviewing the current suite of secondary PM standards, the Policy Assessment considers all PM-related effects that are not being covered in the ongoing NO
In contrast, the proposed rulemaking for the joint NO
Information and conclusions about what is currently known about the role of PM in climate is summarized in Chapter 9 of the Integrated Science Assessment (U.S. EPA, 2009a). The Integrated Science Assessment concludes “that a causal relationship exists between PM and effects on climate, including both direct effects on radiative forcing and indirect effects that involve cloud feedbacks that influence precipitation formation and cloud lifetimes” (U.S. EPA, 2009a, section 9.3.10). The Policy Assessment summarizes and synthesizes the policy-relevant science in the Integrated Science Assessment for the purpose of helping to inform consideration of climate aspects in the review of the secondary PM NAAQS (U.S. EPA, 2011a, section 5.2). This discussion is summarized below.
Atmospheric PM (referred to as aerosols
Global climate change has increasingly been the focus of intense international research endeavors. As discussed in chapter 5 of the Policy Assessment, major efforts are underway to understand the complexities inherent in atmospheric aerosol interactions and to decrease uncertainties associated with climate estimations.
Aerosols have direct and indirect effects on climate processes. The direct effects of aerosols on climate result mainly from particles scattering light away from Earth into space, directly altering the radiative balance of the Earth-atmosphere system. This reflection of solar radiation back to space decreases the transmission of visible radiation to the surface of the Earth and results in a decrease in the heating rate of the surface and the lower atmosphere. At the same time, absorption of either incoming solar radiation or outgoing terrestrial radiation by particles, primarily BC, results in an increased heating rate in the lower atmosphere. Global estimates of aerosol direct radiative forcing (RF) were recently summarized using a combined model-based estimate (Forster et al., 2007). The overall, model-derived aerosol direct RF was estimated in the IPCC AR4 as −0.5 (−0.9 to −0.1) watts per square meter (W/m
The contribution of individual aerosol components to total aerosol direct radiative forcing is more uncertain than the global average (U.S. EPA, 2009a, section 9.3.6.6). The direct effect of radiative scattering by atmospheric particles exerts an overall net cooling of the atmosphere, while particle absorption of solar radiation leads to warming. For example, the presence of OC and sulfates decrease warming from sunlight by scattering shortwave radiation back into space. Such a perturbation of incoming radiation by anthropogenic aerosols is designated as aerosol climate forcing, which is distinguished from the aerosol radiative effect of the total aerosol (natural plus anthropogenic). The aerosol climate forcing and radiative effect are characterized by large spatial and temporal heterogeneities due to the wide variety of aerosol sources, the spatial non-uniformity and intermittency of these sources, the short atmospheric lifetime of aerosols (relative to that of the greenhouse gases), and processing (chemical and microphysical) that occurs in the atmosphere. For example, OC can be warming (positive forcer) when deposited on or suspended over a highly reflective surface such as snow or ice but, on a global average, is a negative forcer in the atmosphere.
More information has also become available on indirect effects of aerosols. Particles in the atmosphere indirectly affect both cloud albedo (reflectivity) and cloud lifetime by modifying the cloud amount, and microphysical and radiative properties (U.S. EPA, 2009a, section 9.3.6.4). The RF due to these indirect effects (cloud albedo effect) of aerosols is estimated in the IPCC AR4 to be −0.7 ( −1.8 to −0.3) W/m
The total negative RF due to direct and indirect effects of aerosols computed from the top of the atmosphere, on a global average, is estimated at −1.3 (−2.2 to −0.5) W/m
The understanding of the magnitude of aerosol effects on climate has increased substantially in the last decade. Data on the atmospheric transport and deposition of aerosols indicate a significant role for PM components in multiple aspects of climate. Aerosols can impact glaciers, snowpack, regional water supplies, precipitation, and climate patterns (U.S. EPA, 2009a, section 9.3.9). Aerosols deposited on ice or snow can lead to melting and subsequent decrease of surface albedo (U.S. EPA, 2009a, section 9.3.9.2). Aerosols are potentially important agents of climate warming in the Arctic and other locations (U.S. EPA, 2009a, section 9.3.9). Carbonaceous aerosols emitted from intermittent fires can occur at large enough scales to affect hemispheric aerosol concentrations. In addition to incidental fires, routine biomass burning, usually associated with agriculture in eastern Europe, has also been shown to contribute to hemispheric concentrations of carbonaceous aerosols and is therefore recognized as having a significant impact on PM
A series of studies available since the last review examines the role of aerosols on local and regional scale climate processes (U.S. EPA, 2009a, section 9.3.9.3). Studies on the South Coast Air Basin (SCAB) in California indicate aerosols may reduce near-surface wind speeds, which, in turn reduce evaporation rates and increase cloud lifetimes. The overall impact can be a reduction in local precipitation (Jacobson and Kaufmann, 2006). Conditions in the SCAB impact ecologically sensitive areas including the Sierra Nevadas. Precipitation suppression due to aerosols in California (Givati and Rosenfield, 2004) and other similar studies in Utah and Colorado found that mountain precipitation decreased by 15 to 30 percent downwind of pollution sources. Evidence of regional-scale impacts of aerosols on meteorological conditions in other regions of the U.S. is lacking.
Advances in the understanding of aerosol components and how they contribute to climate change have enabled refined global forcing estimates of individual PM constituents. The global mean radiative effect from individual components of aerosols was estimated for the first time in the IPCC AR4 where they were reported to be (all in W/m
Improved estimates of anthropogenic emissions of some aerosols, especially BC and OC, have promoted the development of improved global emissions inventories and source-specific emissions factors useful in climate modeling (Bond et al. 2004). Recent data suggests that BC is one of the largest individual warming agents after carbon dioxide (CO
Based on the above newly available scientific information on climate-aerosol relationships, the Policy Assessment concludes that aerosols alter climate processes directly through radiative forcing and by indirect effects on cloud brightness, changes in precipitation, and possible changes in cloud lifetimes (U.S. EPA, 2011a, p. 5-10). Further, the Policy Assessment notes that the major aerosol components that contribute to climate processes (i.e. BC, OC, sulfate, nitrate and mineral dusts) vary in their reflectivity, forcing efficiencies and even in the direction of climate forcing, though there is an overall net climate cooling associated with aerosols in the global atmosphere (U.S. EPA, 2009a, section 9.2.10). In light of this information, the Policy Assessment considered the appropriateness of the current secondary standards defined in terms of PM
Further, in light of the uncertainties associated with the spatial and temporal heterogeneity of PM components that contribute to climate forcing and the uncertainties associated with measurement of aerosol components, the inadequate consideration of aerosol impacts in climate modeling and the insufficient data on local and regional microclimate variations and the heterogeneity of cloud formations, the Policy Assessment concludes it is not currently feasible to conduct a quantitative analysis for the purpose of informing revisions of the current secondary PM standards based on climate (U.S. EPA, 2011a, p. 5-11). Based on these considerations, the Policy Assessment concludes that there is insufficient information at this time to base a national ambient standard on climate impacts associated with current ambient concentrations of PM or its constituents (U.S. EPA, 2011a, p. 5-11, -12).
Information on what is currently known about ecological effects of PM is summarized in Chapter 9 of the Integrated Science Assessment (U.S. EPA, 2009a). Four main categories of ecological effects are identified in the Integrated Science Assessment: Direct effects, effects of PM-altered radiative flux, indirect effects of trace metals, and indirect effects of organics. Exposure to PM for direct effects occurs via deposition (e.g., wet, dry or occult) to vegetation surfaces, while indirect effects occur via deposition to ecosystem soils or surface waters where the deposited constituents of PM then interact with biological organisms. Both fine and coarse-mode particles may affect plants and other organisms; however, PM size classes do not necessarily relate to ecological effects (U.S. EPA, 1996). More often, the chemical constituents drive the ecosystem response to PM (Grantz et al., 2003). The trace metal constituents of PM considered in the ecological effects section of the Integrated Science Assessment are cadmium (Cd), copper (Cu), chromium (Cr), mercury (Hg), nickel (Ni) and zinc (Zn). Ecological effects of lead (Pb) in particulate form are covered in the Air Quality Criteria Document for Lead (U.S. EPA, 2006). The organics included in the ecological effects section of the PM Integrated Science Assessment are persistent organic pollutants (POPs), polyaromatic hydrocarbons (PAHs), and polybromiated diphenyl ethers (PBDEs).
Ecological effects of PM include direct effects to metabolic processes of plant foliage; contribution to total metal loading resulting in alteration of soil biogeochemistry and microbiology, and plant and animal growth and reproduction; and contribution to total organics loading resulting in bioaccumulation and biomagnification across trophic levels.
The Integrated Science Assessment states that overall, ecological evidence is sufficient to conclude that a causal relationship is likely to exist between deposition of PM and a variety of effects on individual organisms and ecosystems based on information from the previous review and limited new findings in this review (U.S. EPA, 2009a, sections 2.5.3 and 9.4.7). However the Integrated Science Assessment also finds, in many cases, it is difficult to characterize the nature and magnitude of effects and to quantify relationships between ambient concentrations of PM and ecosystem response due to significant data gaps and uncertainties as well as considerable variability that exists in the components of PM and their various ecological effects.
Ecological effects of PM must then be evaluated to determine if they are known or anticipated to have an adverse impact on public welfare. Characterizing a known or anticipated adverse effect to public welfare is an important component of developing any secondary NAAQS. The most recent secondary NAAQS reviews have assessed changes in ecosystem structure or processes using a weight-of-evidence approach that uses both quantitative and qualitative data. A paradigm useful in evaluating ecological adversity is the concept of ecosystem services. Ecosystem services consist of the varied and numerous ways that ecosystems are important to human welfare. Ecosystems provide many goods and services that are of vital importance for the functioning of the biosphere and
An important consideration in evaluating biologically adverse effects of PM and linkages to ecosystem services is that many of the MEA categories overlap and any one pollutant may impact multiple services. For example, deposited PM may alter the composition of soil-associated microbial communities, which may affect supporting services such as nutrient cycling. Changes in available soil nutrients could result in alterations to provisioning services such as timber yield and regulating services such as climate regulation. If enough information is available, these alterations can be quantified based upon economic approaches for estimating the value of ecosystem services. Valuation may be important from a policy perspective because it can be used to compare the benefits of altering versus maintaining an ecosystem. Knowledge about the relationships linking ambient concentrations and ecosystem services can be used to inform a policy judgment on a known or anticipated adverse public welfare effect.
The Policy Assessment seeks to build upon and focus this body of science using the concept of ecosystem services to qualitatively evaluate linkages between biologically adverse effects and particulate deposition. This approach is similar to that taken in the NO
As primary producers, plants play a pivotal role in energy flow through ecosystems. Ecosystem services derived from plants include all of the categories (supporting, provisioning, regulating, and cultural) identified in the MEA (Hassan et al., 2005). Vegetation supports other ecosystem processes by cycling nutrients through food webs and serving as a source of organic material for soil formation and enrichment. Trees and plants provide food, wood, fiber, and fuel for human consumption. Flora help to regulate climate by sequestering CO
Particulate matter can adversely impact plants and ecosystem services provided by plants by deposition to vegetative surfaces (U.S. EPA, 2009a, section 9.4.3). Particulates deposited on the surfaces of leaves and needles can block light, altering the radiation received by the plant. PM deposition can obstruct stomata limiting gas exchange, damage leaf cuticles, and increase plant temperatures. This level of PM accumulation is typically observed near sources of heavy deposition such as smelters and mining operations (U.S. EPA, 2009a, section 9.4.3). Plants growing on roadsides exhibit impact damage from near-road PM deposition, having higher levels of organics and heavy metals, and accumulate salt from road de-icing during winter months (U.S. EPA, 2009a, sections 9.4.3.1 and 9.4.5.7).
In addition to damage to plant surfaces, deposited PM can be taken up by plants from soil or foliage. The ability of vegetation to take up heavy metals and organics is dependent upon the amount, solubility, and chemical composition of the deposited PM. Uptake of PM by plants from soils and vegetative surfaces can disrupt photosynthesis, alter pigments and mineral content, reduce plant vigor, decrease frost hardiness, and impair root development. The Integrated Science Assessment indicates that there are little or no effects on foliar processes at ambient levels of PM (U.S. EPA, 2009a, sections 9.4.3 and 9.4.7). However, damage due to atmospheric pollution can occur near individual point sources or under conditions where plants are subjected to multiple stressors.
Although all heavy metals can be directly toxic at sufficiently high concentrations, only Cu, Ni, and Zn have been documented as being frequently toxic to plants (U.S. EPA, 2004), while toxicity due to Cd, Co, and Pb has been observed less frequently (Smith, 1990; U.S. EPA, 2009a, section 9.4.5.3). In general, plant growth is negatively correlated with trace metal and heavy metal concentration in soils and plant tissue (Audet and Charest, 2007). Trace metals, particularly heavy metals, can influence forest growth. Growth suppression of foliar microflora has been shown to result from iron (Fe), aluminum (Al), and Zn. These three metals can also inhibit fungal spore formation, as can Cd, Cr, magnesium (Mg), and Ni (see Smith, 1990). Metals cause stress and decreased photosynthesis (Kucera et al., 2008) and disrupt numerous enzymes and metabolic pathways (Strydom et al., 2006). Excessive concentrations of metals result in phytotoxicity.
New information since the last review provides additional evidence of plant uptake of organics (U.S. EPA, 2009a, section 9.4.6). An area of active study is the impact of PAHs on provisioning ecosystem services due to the potential for human and other animal exposure via food consumption (U.S. EPA, 2009a, section 9.4.6 page 9-190). The uptake of PAHs depends on the plant species, site of deposition, physical and chemical properties of the organic compound, and prevailing environmental conditions. It has been established that most bioaccumulation of PAHs by plants occurs via leaf uptake, and to a lesser extent, through roots. Differences between species in uptake of PAHs confound attempts to quantify impacts to ecosystem provisioning services.
Plants as ecosystem regulators can serve as passive monitors of pollution (U.S. EPA, 2009a, section 9.4.2.3). Lichens and mosses are sensitive to pollutants associated with PM and have been used with limited success to show spatial and temporal patterns of atmospheric deposition of metals (U.S. EPA, 2009a, section 9.4.2.3). A limitation to employing mosses and lichens to detect for the presence of air pollutants is the difference in uptake efficiencies of metals between species. Thus, quantification of ecological effects is not possible due to the variability of species responses (U.S. EPA, 2009a, section 9.4.2.3).
A potentially important regulating ecosystem service of plants is their capacity to sequester contaminants (U.S. EPA, 2009a, section 9.4.5.3). Ongoing research on the application of plants to environmental remediation efforts are
An ecological endpoint (phytochelatin concentration) associated with presence of metals in the environment has been correlated with the ecological effect of tree mortality (Grantz et al., 2003). Metal stress may be contributing to tree injury and forest decline in the Northeastern U.S. where red spruce populations are declining with increasing elevation. Quantitative assessment of PM damage to forests potentially could be conducted by overlaying PM sampling data and elevated phytochelatin levels. However, limited data on phytochelatin levels in other species currently hinders use of this peptide as a general biomarker for PM.
The presence of PM in the atmosphere affects ambient radiation as discussed in the Integrated Science Assessment which can impact the amount of sunlight received by plants (U.S. EPA, 2009a, section 9.4.4). Atmospheric PM can change the radiation reaching leaf surfaces through attenuation and by converting direct radiation to diffuse radiation. Diffuse radiation is more uniformly distributed in a tree canopy, allowing radiation to reach lower leaves. The net effect of PM on photosynthesis depends on the reduction of photosynthetically active radiation (PAR) and the increase in the diffuse fraction of PAR. Decreases in crop yields (provisioning ecosystem service) have been attributed to regional scale air pollution, however, global models suggest that the diffuse light fraction of PAR can increase growth (U.S. EPA, 2009a, section 9.4.4).
Many of the major indirect plant responses to PM deposition are chiefly soil-mediated and depend on the chemical composition of individual components of deposited PM. Major ecosystem services impacted by PM deposition to soils include support services such as nutrient cycling, products such as crops and regulating flooding and water quality. Upon entering the soil environment, PM pollutants can alter ecological processes of energy flow and nutrient cycling, inhibit nutrient uptake to plants, change microbial community structure and, affect biodiversity. Accumulation of heavy metals in soils depends on factors such as local soil characteristics, geologic origin of parent soils, and metal bioavailability. It can be difficult to assess the extent to which observed heavy metal concentrations in soil are of anthropogenic origin (U.S. EPA, 2009a, section 9.4.5.1). Trace element concentrations are higher in some soils that are remote from air pollution sources due to parent material and local geomorphology.
Heavy metals such as Zn, Cu, and Cd and some pesticides can interfere with microorganisms that are responsible for decomposition of soil litter, an important regulating ecosystem service that serves as a source of soil nutrients (U.S. EPA, 2009a, sections 9.4.5.1 and 9.4.5.2). Surface litter decomposition is reduced in soils having high metal concentrations. Soil communities have associated bacteria, fungi, and invertebrates that are essential to soil nutrient cycling processes. Changes to the relative species abundance and community composition can be quantified to measure impacts of deposited PM to soil biota. A mutualistic relationship exists in the rhizophere (plant root zone) between plant roots, fungi, and microbes. Fungi in association with plant roots form mycorrhizae that are essential for nutrient uptake by plants. The role of mychorrizal fungi in plant uptake of metals from soils and effects of deposited PM on soil microbes is discussed in section 9.4.5.2 of the Integrated Science Assessment.
Animals play a significant role in ecosystem function including nutrient cycling and crop production (supporting ecosystem service), and as a source of food (provisioning ecosystem service). Cultural ecosystem services provided by wildlife include bird and animal watching, hunting, and fishing. Impacts on these services are dependent upon the bioavailability of deposited metals and organics and their respective toxicities to ecosystem receptors. Pathways of PM exposure to fauna include ingestion, absorption and trophic transfer. Bioindicator species (known as sentinel organisms) can provide evidence of contamination due to atmospheric pollutants. Use of sentinel species can be of particular value because chemical constituents of deposited PM are difficult to characterize and have varying bioavailability (U.S. EPA, 2009a, section 9.4.5.5). Snails readily bioaccumulate contaminants such as PAHs and trace metals. These organisms have been deployed as biomonitors for urban pollution and have quantifiable biomarkers of exposure including growth inhibition, impairment of reproduction, peroxidomal proliferation, and induction of metal detoxifying proteins (metallothioneins) (Gomet-de Vaufleury, 2002; Regoli, et. al, 2006). Earthworms have also been used as sensitive indicators of soil metal contamination.
Evidence of deposited PM effects on animals is limited (U.S. EPA, 2009a, section 9.4.5.5). Trophic transfer of pollutants of atmospheric origin has been demonstrated in limited studies. PM may also be transferred between aquatic and terrestrial compartments. There is limited evidence for biomagnifications of heavy metals up the food chain except for Hg which is well known to move readily through environmental compartments (U.S. EPA, 2009a, section 9.4.5.6). Bioconcentration of POPs and PBDEs in the Arctic and deep-water oceanic food webs indicates the global transport of particle-associated organics (U.S. EPA, 2009a, section 9.4.6). Salmon migrations are contributing to metal accumulation in inland aquatic systems, potentially impacting the provisioning and cultural ecosystem service of fishing (U.S. EPA, 2009a, section 9.4.6). Stable isotope analysis can be applied to establish linkages between PM exposure and impacts to food webs however, the use of this evaluation tool is limited for this ecological endpoint due to the complexity of most trophic interactions (U.S. EPA, 2009a, section 9.4.5.6). Foraging cattle have been used to assess atmospheric deposition and subsequent bioaccumulation of Hg and trace metals and their impacts on provisioning services (U.S. EPA, 2009a, section 9.4.2.3).
New limited information on impacts of deposited PM on receiving water bodies indicate that the ecosystem services of primary production, provision of fresh water, regulation of climate and floods, recreational fishing and water purification are adversely impacted by atmospheric inputs of metals and organics (U.S. EPA, 2009a, sections 9.4.2.3 and 9.4.5.4). Deposition of PM to surfaces in urban settings increases the metal and organic component of storm water runoff (U.S. EPA, 2009a, sections 9.4.2.3). This atmospherically-associated pollutant burden can then be toxic to aquatic biota.
Atmospheric deposition can be the primary source of some organics and metals to watersheds. The contribution of atmospherically deposited PAHs to aquatic food webs was demonstrated in high elevation mountain lakes with no other anthropogenic contaminant sources (U.S. EPA, 2009a, section 9.4.6). Metals associated with PM deposition limit phytoplankton growth, impacting aquatic trophic structure. Long-range atmospheric transport of 47 pesticides and degradation products to the snowpack in seven national parks in the Western U.S. was recently quantified indicating PM-associated contaminant inputs to receiving waters during spring snowmelt (Hageman et al., 2006).
The recently completed Western Airborne Contaminants Assessment Project (WACAP) is the most comprehensive database on contaminant transport and PM depositional effects on sensitive ecosystems in the U.S. In this project, the transport, fate, and ecological impacts of anthropogenic contaminants from atmospheric sources were assessed from 2002 to 2007 in seven ecosystem components (air, snow, water, sediment, lichen, conifer needles and fish) in eight core national parks (Landers et al., 2008). The goals of the study were to identify where the pollutants were accumulating, identify ecological indicators for those pollutants causing ecological harm, and to determine the source of the air masses most likely to have transported the contaminants to the parks (U.S. EPA, 2009a, section 9.4.6). The study concluded that bioaccumulation of semi-volatile organic compounds was observed throughout park ecosystems (Landers et al., 2008). Findings from this study included the observation of an elevational gradient in PM deposition with greater accumulation at higher altitude areas of the parks. Furthermore, specific ecological indicators were identified in the WACAP that can be useful in assessing contamination on larger spatial scales.
In the WACAP study, bioaccumulation and biomagnification of airborne contaminants were demonstrated on a regional scale in remote ecosystems in the Western United States. Contaminants were shown to accumulate geographically based on proximity to individual sources or source areas, primarily agriculture and industry (Landers et al., 2008). Although this assessment focuses on chemical species that are components of PM, it does not specifically assess the effects of particulates versus gas-phase forms; therefore, in most cases it is difficult to apply the results to this assessment based on particulate concentration and size fraction (U.S. EPA, 2009a, section 9.4.6). There is a need for ecological modeling of PM components in different environmental compartments to further elucidate links between PM and ecological indicators.
Europe and other countries are using the critical load approach to assess pollutant effects at the level of the ecosystem. This type of assessment requires site-specific data and information on individual species responses to PM. In respect to trace metals and organics, there are insufficient data for the vast majority of U.S. ecosystems to calculate critical loads. However, a methodology is being presented in the NO
As reviewed above, there is considerable data on impacts of PM on ecological receptors, but few studies that link ambient PM concentrations to observed effect. This is due, in part, to the nature, deposition, transport and fate of PM in ecosystems. PM is not a single pollutant, but a heterogeneous mixture of particles differing in size, origin and chemical composition (U.S. EPA, 2009a, section 9.4.1). The heterogeneity of PM exists not only within individual particles or samples from individual sites, but to even a greater extent, between samples from different sites. Since vegetation and other ecosystem components are affected more by particulate chemistry than size fraction, exposure to a given mass concentration of airborne PM may lead to widely differing plant or ecosystem responses, depending on the particular mix of deposited particles. Many of the PM components bioaccumulate over time in organisms or plants making correlations to ambient concentrations of PM difficult.
Bioindicator organisms demonstrated biological effects including growth inhibition, metallothionein induction and reproductive impairment when exposed to complex mixtures of ambient air pollutants (U.S. EPA, 2009a, section 9.4.5.5). Other studies quantify uptake of metals and organics by plants or animals. However, due to the difficulty in correlating individual PM components to a specific physiological response, these studies are limited. Furthermore, there may be differences in uptake between species such as differing responses to metal uptake observed in mosses and lichens (U.S. EPA, 2009a, section 9.4.2.3). PM may also biomagnify across trophic levels confounding efforts to link atmospheric concentrations to physiological endpoints (U.S. EPA, 2009a, section 9.4.5.6).
Evidence of PM effects that are linked to a specific ecological endpoint can be observed when ambient levels are exceeded. Most direct ecosystem effects associated with particulate pollution occur in severely polluted areas near industrial point sources (quarries, cement kilns, metal smelting) (U.S. EPA, 2009a, sections 9.4.3 and 9.4.5.7). Extensive research on biota near point sources provide some of the best evidence of ecosystem function impacts and demonstrates that deposited PM has the potential to alter species composition over long time scales. The Integrated Science Assessment indicates at 4 km distance, species composition of vegetation, insects, birds, and soil microbiota changed, and within 1 km only the most resistant organisms were surviving (U.S. EPA, 2009a, section 9.4.5.7).
Based on the above discussions, the Policy Assessment made the following observations:
(1) A number of significant environmental effects that either have already occurred or are currently occurring are linked to deposition of chemical constituents found in ambient PM.
(2) Ecosystem services can be adversely impacted by PM in the environment, including supporting, provisioning, regulating and cultural services.
(3) The lack of sufficient information to relate specific ambient concentrations of particulate metals and organics to a degree of impairment of a specific ecological endpoint hinders the identification of a range of appropriate indicators, levels, forms and averaging times of a distinct secondary standard to protect against associated effects.
(4) Data from regionally-based ecological studies can be used to establish probable local, regional and/or global sources of deposited PM components and their concurrent effects on ecological receptors.
Taking into consideration the responses to specific questions regarding the adequacy of the current secondary PM standards for ecological effects, the Policy Assessment concludes that the available information is insufficient to assess the adequacy of the protection for ecosystems afforded by the current suite of PM secondary standards (U.S. EPA, 2011a, p. 5-24). Ecosystem effects linked to PM are difficult to determine because the changes may not be observed until
The Policy Assessment considered the appropriateness of continuing to use the PM
Welfare effects on materials associated with deposition of PM include both physical damage (materials damage effects) and impaired aesthetic qualities (soiling effects). Because the effects of PM are exacerbated by the presence of acidic gases and can be additive or synergistic due to the complex mixture of pollutants in the air and surface characteristics of the material, this discussion will also include those particles and gases that are associated with the presence of ambient oxides of nitrogen and oxides of sulfur, as well as reduced forms of nitrogen (such as ammonia and ammonium ions) for completeness. Building upon the information presented in the last PM Staff Paper (U.S. EPA, 2005), and including the limited new information presented in Chapter 9 of the PM Integrated Science Assessment (U.S. EPA, 2009a) and
The Integrated Science Assessment concludes that evidence is sufficient to support a causal relationship between PM and effects on materials (U.S. EPA, 2009a, sections 2.5.4 and 9.5.4). The deposition of PM can physically affect materials, adding to the effects of natural weathering processes, by potentially promoting or accelerating the corrosion of metals, by degrading paints and by deteriorating building materials such as stone, concrete and marble (U.S. EPA, 2009a, section 9.5). Particles contribute to these physical effects because of their electrolytic, hygroscopic and acidic properties, and their ability to sorb corrosive gases (principally sulfur dioxide). In addition, the deposition of ambient PM can reduce the aesthetic appeal of buildings and objects through soiling. Particles consisting primarily of carbonaceous compounds cause soiling of commonly used building materials and culturally important items such as statues and works of art. Soiling is the deposition of particles on surfaces by impingement, and the accumulation of particles on the surface of an exposed material that results in degradation of its appearance (U.S. EPA, 2009a, section 9.5). Soiling can be remedied by cleaning or washing, and depending on the soiled material, repainting.
The majority of available new studies on materials effects of PM are from outside the U.S., however, they provide limited new data for consideration of the secondary standard.
Metal and stone are also susceptible to damage by ambient PM. Considerable research has been conducted on the effects of air pollutants on metal surfaces due to the economic importance of these materials, especially steel, Zn, Al, and Cu. Chapter 9 of the PM Integrated Science Assessment and Annex E of the NO
The PM Integrated Science Assessment and NO
A limited number of new studies available on materials damage effects of PM since the last review consider the relationship between pollutants and biodeterioration of structures associated with microbial communities that colonize monuments and buildings (U.S. EPA, 2009a, section 9.5). Presence of air pollutants may synergistically enhance microbial deterioration processes. The role of heterotrophic bacteria, fungi and cyanobacteria in biodeterioration varied by local meterological conditions and pollutant components.
Particulate matter deposition onto surfaces such as metal, glass, stone and paint can lead to soiling. Soiling results when PM accumulates on an object and alters the optical characteristics (appearance). The reflectivity of a surface may be changed or presence of particulates may alter light transmission. These effects can impact the aesthetic value of a structure or result in reversible or irreversible damage to statues, artwork and architecturally or culturally significant buildings. Due to soiling of building surfaces by PM, the frequency and duration of cleaning may be increased. Soiling affects the aesthetic appeal of painted surfaces. In addition to natural
Formation of black crusts due to carbonaceous compounds and buildup of microbial biofilms results in discoloration of surfaces. Black crust includes a carbonate component derived from building material and OC and EC. In limited new studies quantifying the organic carbon and elemental contribution to soiling by black crust, organic carbon predominated over elemental carbon at almost all locations (Bonazza et al., 2005). Limited new studies suggest that traffic is the major source of carbon associated with black crust formation (Putaud et al., 2004) and that soiling of structures in Oxford, UK showed a relationship with traffic and nitrogen dioxide concentrations (Viles and Gorbushina, 2003). These findings attempt to link atmospheric concentrations of PM to observed damage. However, no data on rates of damage are available and all studies were conducted outside of the U.S.
Based on the above discussion, the Policy Assessment makes the following observations:
(1) Materials damage and soiling that occur through natural weathering processes are enhanced by exposure to atmospheric pollutants, most notably sulfur dioxide and particulate sulfates.
(2) While ambient particles play a role in the corrosion of metals and in the weathering of materials, no quantitative relationships between ambient particle concentrations and rates of damage have been established.
(3) While soiling associated with fine and course particles can result in increased cleaning frequency and repainting of surfaces, no quantitative relationships between particle characteristics and the frequency of cleaning or repainting have been established.
(4) Limited new data on the role of microbial colonizers in biodeterioration processes and contributions of black crust to soiling are not sufficient for quantitative analysis.
(5) While several studies in the PM Integrated Science Assessment and NO
Revisiting the overarching policy question as to whether the available scientific evidence supports or calls into question the adequacy of the protection for materials afforded by the current suite of secondary PM standards, the Policy Assessment concludes that no new evidence in this review calls into question the adequacy of the protection for materials afforded by the current standard (U.S. EPA, 2011a, p. 5-29). PM effects on materials can play no quantitative role in considering whether any revisions of the secondary PM NAAQS are appropriate at this time. Nonetheless, in the absence of information that provides a basis for establishing a different level of control, the Policy Assessment concludes that observations continue to support retaining an appropriate degree of control on both fine and coarse particles to help address materials damage and soiling associated with PM (U.S. EPA, 2011a, p. 5-29).
Regarding the other non-visibility welfare effects, CASAC stated that it “concurs with the Policy Assessment's conclusions that while these effects are important, and should be the focus of future research efforts, there is not currently a strong technical basis to support revisions of the current standards to protect against these other welfare effects” (Samet, 2010c). More specifically, with regard to climate impacts, CASAC concludes that while there is insufficient information on which to base a national standard, the causal relationship is established and the risk of impacts is high, so further research on a regional basis is urgently needed (Samet, 2010c, p. 5). CASAC also notes that reducing certain aerosol components could lead to increased radiative forcing and regional climate warming while having a beneficial effect on PM-related visibility. As a consequence, CASAC notes that a secondary standard directed toward reducing PM-related visibility impairment has the potential to be accompanied by regional warming if light scattering aerosols are preferentially targeted.
With regard to ecological effects, CASAC concludes that the published literature is insufficient to support a national standard for PM effects on ecosystem services (Samet, 2010c, p.23). CASAC notes that the best-established effects are related to particles containing nitrogen and sulfur, which are being considered in the EPA's ongoing review of the secondary NAAQS for NO
Based on the above considerations and the advice of CASAC, the Administrator provisionally concludes that it is not appropriate to establish any distinct secondary PM standards to address other non-visibility PM-related welfare effects. Nonetheless, the Administrator concurs with the conclusions of the Policy Assessment and CASAC advice that it is important to maintain an appropriate degree of control of both fine and coarse particles to address such effects, including ecological effects, effects on materials, and climate impacts. In the absence of information that would support any different standards, the Administrator proposes generally to retain the current suite of secondary PM standards
With regard to the secondary PM standards, the Administrator proposes to revise the suite of secondary PM standards by adding a distinct standard for PM
With regard to the NAAQS for PM
As discussed in sections III and VI above, the EPA is proposing to: (1) Revise the form and level of the primary annual PM
Section 1(b) of appendix N refers to special considerations that may be given to data resulting from exceptional events. An exceptional event is defined in 40 CFR 50.1 as an event that affects air quality, is not reasonably controllable or preventable, is an event caused by human activity that is unlikely to recur at a particular location or a natural event, and is determined by the Administrator in accordance with 40 CFR 50.14 to be an exceptional event. Air quality data that are determined to have been affected by an exceptional event under the procedural steps, substantive criteria, and schedule specified in section 50.14 may be excluded from consideration when EPA makes a determination that an area is meeting or violating the associated NAAQS. Proposed revisions to the schedule specified in section 50.14 for data flagging and submission of demonstrations for exceptional events data considered for initial area designations under the proposed revised primary and secondary PM standards are discussed in section VII.B below.
Several proposed updates and clarifications to the data handling provisions associated with AQI reporting in 40 CFR part 58, Appendix G are discussed in section VII.C below. These modifications reflect the proposed changes to the AQI sub-index for PM
As discussed below, the proposed revisions to appendix N corresponding to proposed changes in the standards addressed in sections III and VI above are: (1) Modification of the level of the primary annual PM
The EPA proposes to modify section 1.0 of appendix N to provide additional clarity regarding the scope and interpretation of the NAAQS for PM
The EPA proposes revisions to section 2.0 of appendix N consistent with the proposed modification of the form of the primary annual PM
With respect to the form of the secondary annual PM
Consistent with the proposed change to revise the forms of the primary and secondary annual PM
The EPA proposes to make changes to section 3.0 of appendix N to correspond with the proposed secondary PM
With regard to the criteria for reporting PM
With regard to the proposed secondary PM
Monitoring sites eligible for comparison to the NAAQS for PM
With regard to data handling procedures for using hourly mass concentrations to calculate 24-hour average mass concentrations, current procedures are specific for handling aggregated PM
With respect to the procedures for combining monitored data from collocated instruments into a single “combined site” data record, the EPA proposes to revise the current methodology in situations where an FRM monitor operating on a non-daily schedule is collocated with a continuous FEM monitor (that has acceptable comparability with an FRM). The EPA is not proposing to change the procedures for calculating a combined site record
Before the introduction of continuous PM
In light of this practice, the EPA modified standing operating procedures and now proposes a conforming revision to section 3.0(e) whereby collocated FEM samples reported on the FRM “off” days would be considered “scheduled” and “creditable.” Thus, collocated FEM samples would count towards data capture rates (actually, increasing both the numerator and the denominator in the capture rate equation), and also would count towards identifying annual 98th percentile concentrations. Further, consistent with current practices, if data from a collocated FEM are missing on an FRM “off” day (and no unscheduled FRM data are reported that day), the EPA proposes not to identify these as “scheduled” samples. Thus, reported data generated from the collocated continuous FEMs can only help increase data capture rates. The EPA specifically solicits comment on whether “non-primary” (i.e., collocated) FEM data should be combined with the primary data as part of the comparison to the NAAQS for PM
The EPA proposes to utilize the same general procedures for combining speciated PM
Section 4.0 of appendix N specifies the procedures for comparing monitored data to the annual and 24-hour PM
Consistent with the proposed decisions to revise the level of the primary annual PM
With regard to assessments of data completeness, the EPA proposes to include two additional data substitution tests
Currently, section 4.1(c) specifies one data substitution test for validating an otherwise incomplete design value. This diagnostic test is only applicable to the primary and secondary annual PM
With regard to identifying annual 98th percentile concentrations for comparison to the primary and secondary 24-hour PM
Currently, with an approved seasonal sampling schedule, a site typically samples as required during periods of the year when the highest concentrations are expected to occur, but less frequently during periods of the year when lower concentrations are expected to occur. This type of sampling schedule generally leads to an “unbalanced” data record; that is, a data record with proportionally more ambient measurements (with respect to the total number of days in the sampling period) in the “high” season and proportionally fewer ambient measurements in the “low” season.
In the last review, the EPA revised section 4.5 of appendix N to include a special formula for computing annual 98th percentile values when a site operates on an approved seasonal sampling schedule. This special formula accounted for an unbalanced data record and was consistent with guidance documentation (U.S. EPA, 1999), and, where appropriate, with official OAQPS design value calculations (71 FR 61211, October 17, 2006). In cases where there is a balanced
To qualify for a seasonal sampling schedule, monitoring agencies are required to collocate a continuous PM
The EPA notes that currently there are very few PM
As summarized in section VI.F above, the EPA is proposing to establish a distinct secondary standard for PM
The EPA proposes to add a new section 5.0 to appendix N to detail the data handling procedures for calculating PM
As discussed in section VI.B.1.a above, visibility impairment is caused by the scattering and absorption of light by suspended particles and gases in the atmosphere. The combined effect of light scattering and absorption by both particles and gases is characterized as light extinction. The amount of light extinction contributed by PM depends on the particle size distribution and composition, as well as the concentrations of speciated components of ambient PM. To make estimation of light extinction more practical, visibility scientists have developed simple algorithms, referred to as the IMPROVE algorithms to relate speciated PM
The EPA proposes to define the PM
Consistent with the analyses and terminology used in the Policy Assessment (U.S. EPA, 2011a, chapter 4, Appendix G), PM
(1) As discussed in Section VI.B.1.a above, “sulfate” is defined as ammonium sulfate and “nitrate” is defined as ammonium nitrate. Multiply 24-hour average speciation measurements of sulfate and nitrate ions by factors 1.375 and 1.29, respectively, to convert the reported ion concentrations into sulfate and nitrate ammonium concentrations (appendix N, equations 5a and 5b).
(2) Convert artifact adjusted measured OC, which is termed “PM
(3) Calculate fine soil/crustal PM
(4) Determine a representative long-term monthly average of hourly relative humidity hygroscopic growth factors, referred to as
(5) Apply the original IMPROVE algorithm without the terms for coarse mass and Rayleigh scatter (appendix N, equation 6) to calculate a daily average PM
(6) To translate PM
As discussed in section VI.D.3 above, the EPA is proposing a 90th percentile form, averaged over 3 years, for the proposed secondary PM
With regard to rounding conventions, the EPA proposes that all decimal digits be retained in the intermediate steps of the calculation of the PM
Consistent with current procedures for PM and the other criteria pollutants, the EPA plans to calculate design values for the proposed secondary PM
States
All states and areas of Indian country that include areas that could exceed the proposed PM NAAQS and could therefore be designated as nonattainment for the proposed PM NAAQS have the potential to be affected by this rulemaking. Therefore, this action would apply to all states; to local air quality agencies to which a state has delegated relevant responsibilities for air quality management including air quality monitoring and data analysis; and to tribal air quality agencies where appropriate.
The “Treatment of Data Influenced by Exceptional Events; Final Rule” (72 FR 13560, March 22, 2007), known as the Exceptional Events Rule and codified at 40 CFR 50.14, contains generic deadlines for a state to submit to EPA specified information about exceptional events and associated air pollutant concentration data. A state must initially notify the EPA that data have been affected by an event by July 1 of the calendar year following the year in which the event occurred. This is done by flagging the data in AQS and providing an initial event description. The state must also, after notice and opportunity for public comment, submit a demonstration to justify any claim within three years after the quarter in which the data were collected. However, if a regulatory decision based on the data (for example, a designation action) is anticipated, the schedule to flag data in AQS and submit complete documentation to EPA for review may be shortened and all information must be submitted to the EPA no later than one year before the decision is to be made.
These generic deadlines in the Exceptional Events Rule are suitable after initial designations have been made under a NAAQS or when an area is to be redesignated, either from attainment to nonattainment or from nonattainment to attainment, and the redesignation status may depend on the excluded data. However, these same generic deadlines may need to be adjusted to accommodate the initial area designation process and schedule under a newly revised NAAQS. Until the level and form of the NAAQS have been promulgated, a state does not know whether the criteria for excluding data (which are tied to the level and form of the NAAQS) were met for a given event. In some cases, the generic deadlines, especially the deadlines for flagging some relevant data, may have already passed by the time the new or revised NAAQS is promulgated. In addition, it may not be feasible for information on some exceptional events that may affect final designations decisions to be collected and submitted to EPA at least one year in advance of the final designation decision. This scheduling constraint could have the unintended consequence of the EPA designating an area nonattainment because of uncontrollable natural or other qualified exceptional events.
The Exceptional Events Rule at section 50.14(c)(2)(vi) indicates “when EPA sets a NAAQS for a new pollutant or revises the NAAQS for an existing pollutant, it may revise or set a new schedule for flagging exceptional event data, providing initial data descriptions and providing detailed data documentation in AQS for the initial designations of areas for those NAAQS.”
The EPA intends to promulgate the revised PM NAAQS in December 2012. State Governors (and tribes, if they choose) should submit designations recommendations by December 2013, based on air quality data from the years 2010 to 2012 or 2011 to 2013, if there are sufficient data for these years. Initial designations under the revised NAAQS would be made by December 2014 based on air quality data from the years 2011 to 2013. (See section IX.A for a more detailed discussion of the designation schedule.) Assuming this schedule, all events to be considered during the designations process would need to be flagged and fully documented by states one year prior to designations, or by December 2013, under the existing generic deadline in the Exceptional Events Rule. Without revision to 40 CFR 50.14, a state would not be able to flag and submit documentation regarding events that occurred in December 2013 by one year before designations are made in December 2014. The EPA believes this is not an appropriate restriction, and therefore is proposing revisions to 40 CFR 50.14.
The EPA proposes revisions to 40 CFR 50.14 only to change submission dates for information supporting claimed exceptional events affecting PM data for initial area designations under the proposed new and revised PM NAAQS. The proposed rule language at the end of this notice shows the changes that would apply assuming promulgation of the new and revised PM NAAQS in December 2012 and initial area designations by December 2014. For air quality data collected in 2010 or 2011, the EPA proposes extending to July 1, 2013 the otherwise applicable generic deadlines of July 1, 2011 and July 1, 2012, respectively, for flagging data and providing an initial description of an event (40 CFR 50.14(c)(2)(iii)). The EPA proposes to retain the existing generic deadline in the Exceptional Events Rule of July 1, 2013 for flagging data and providing an initial description of events occurring in 2012. Similarly, the EPA proposes to revise to December 12, 2013 the deadline for submitting
If a state intends the EPA to consider in the PM designations decisions whether PM data collected during 2013 have been affected by exceptional events, the EPA proposes that these data must be flagged by the generic Exceptional Event Rule deadline of July 1, 2014. The EPA proposes to revise to August 1, 2014 the deadline for submitting documentation to justify PM-related exceptional events occurring in 2013. The EPA believes that these deadlines provide states with adequate time to review and identify potential exceptional events that occur in calendar year 2013.
Therefore, using the authority provided in CAA section 319(b)(2) and in the Exceptional Events Rule at 40 CFR 50.14 (c)(2)(vi), the EPA proposes to modify the schedule for data flagging and submission of demonstrations for exceptional events data considered for initial area designations under the proposed PM primary and secondary NAAQS as presented in Table 3. If the promulgation date for a revised PM NAAQS occurs on a different date than in December 2012, the EPA will revise the final PM exceptional event flagging and documentation submission deadlines accordingly, consistent with the logic of this proposal, to provide states with reasonably adequate opportunity to review, identify, and document exceptional events that may affect an area designation under a revised NAAQS. The EPA invites comment on these proposed changes, shown in Table 3, to the exceptional event data flagging and documentation submission deadlines for the proposed revised PM NAAQS.
The EPA is proposing to update appendix G of 40 CFR part 58 to clarify units, breakpoint precision, and truncation methods for AQI sub-indices. These changes are intended to harmonize the AQI reporting requirements with data handling provisions expressed elsewhere in 40 CFR part 50. Currently, the breakpoints for NO
The EPA proposes changes to the ambient air monitoring, reporting, and network design requirements associated with the PM NAAQS. Ambient PM monitoring data are used to meet a variety of monitoring objectives including determining whether an area is in violation of the PM NAAQS. Ambient PM monitoring data are collected by state, local, and tribal monitoring agencies (“monitoring agencies”) in accordance with the monitoring requirements contained in 40 CFR parts 50, 53, and 58. This section discusses the monitoring changes that the EPA is proposing to support the proposed PM NAAQS summarized in sections III.F, IV.F, and VI.F above.
To be used in a determination of compliance with the PM NAAQS, PM data are typically collected using samplers or monitors employing an FRM or FEM. The EPA also allows use of alternative methods where explicitly stated in the monitoring methodology requirements (appendix C of 40 CFR part 58), such as PM
In 2006, the EPA finalized new testing and performance criteria for Class II and Class III FEMs (71 FR 61281 to 61289, October 17, 2006). Class II methods are equivalent methods for PM
While the EPA has approved these PM
The EPA continues to believe that an effective PM
The EPA believes that progress is being made to implement well performing PM
While EPA is not proposing any changes to the performance or testing criteria in 40 CFR part 53 used to approve PM
The EPA, monitoring agencies, and external scientists and policy makers use PM
The methods employed in the CSN are well documented and uniformly implemented across the country. However, between May 2007 and
As noted in section VI.D.1.c above, the proposed new secondary standard for PM
With reference to CSN methods, the EPA is specifically not proposing to include testing or performance criteria for approval of CSN measurements as FRMs. The EPA believes that the proposed framework of using the current, well-documented set of CSN and IMPROVE methods provides a nationally consistent way to provide the chemical species data used in calculating PM
As discussed in section VII.A.5 above, the calculation of the PM
The EPA proposes to revise several terms associated with PM
The EPA proposes to revoke the term “community-oriented” and replace it with the term “area-wide.” The term “community-oriented,” while used within the description of the design criteria for PM
The EPA proposes to revoke the term “Community Monitoring Zone” (CMZ) and references to it in 40 CFR part 58. Community monitoring zone is currently defined as “an optional averaging area with established, well defined boundaries, such as county or census block, within an MPA that has relatively uniform concentrations of annual PM
In general, ambient monitors must meet a basic set of requirements before the resulting data can be used for comparison to the NAAQS; these requirements include the presence and implementation of an approved quality assurance project plan, the use of methods that are reference, equivalent, or other approved method as described in appendix C to 40 CFR part 58, and compliance with the probe and siting path criteria as described in appendix E to 40 CFR part 58. While these 40 CFR part 58 requirements apply to a monitor that provides data for comparison to the NAAQS, only in the PM
The inclusion of these provisions in the PM
The EPA proposes to revoke the requirement that PM
In reviewing the impact that this proposed change might have on the nation's PM
The EPA is clarifying language used to determine when PM
EPA and monitoring agencies already have a process for approving PM
As described in appendix D to 40 CFR part 58, the ambient air monitoring networks must be designed to meet three basic monitoring objectives: (a) Provide air pollution data to the general public in a timely manner. Data can be presented to the public in a number of attractive ways including through air quality maps, newspapers, Internet sites, and as part of weather forecasts and public advisories. (b) Support compliance with ambient air quality standards and emissions strategy development. Data from FRM, FEM, and ARM monitors for NAAQS pollutants will be used for comparing an area's air pollution levels against the NAAQS. Data from monitors of various types can be used in the development of attainment and maintenance plans. SLAMS, and especially National Core Monitoring Network (NCore)
To support the air quality management work indicated in the three basic air monitoring objectives, a network must be designed with a variety of types of monitoring sites. Monitoring sites must be capable of informing managers about many things including the peak air pollution levels, typical levels in populated areas, air pollution transported into and outside of a city or region, and air pollution levels near specific sources. To summarize some of these sites, here is a listing of six general site types: (a) Sites located to determine the highest concentrations expected to occur in the area covered by the network; (b) sites located to measure typical concentrations in areas of high population density; (c) sites located to determine the impact of significant sources or source categories on air quality; (d) sites located to determine general background concentration levels; and (e) sites located to determine the extent of regional pollutant transport among populated areas; and in support of secondary standards.
In this section, the EPA proposes to add a near-road component to the PM
The EPA believes that there are gradients in near-roadway PM
The monitoring methods that are appropriate for this purpose are an FRM, FEM, or ARM. The EPA recognizes that there are limitations in the ability of some of these PM methods to accurately measure PM
Additionally, the EPA recognizes that the near-road sites would provide a valuable platform for evaluating emerging monitoring technologies and for measuring other pollutants besides PM
The EPA believes that requiring a modest network of near-road compliance PM
While the EPA recognizes that the location of maximum concentration of PM
The EPA notes that the 52 proposed near-road monitors represent a small number of the total approximate 900 operating PM
Ideally, near-road sites would be located at the elevation and distance from the road where maximum concentration of PM
The timeline to implement the proposed near-road PM
In summary, the EPA proposes to specifically include a near-road component in the PM
The EPA proposes that each agency specify their intention to use or not use data from continuous PM
In 2006, the EPA finalized new performance criteria for approval of continuous PM
Given the varying data comparability of continuous PM
The issue exists of whether such data use provisions should be prospective only (i.e., future NAAQS comparability excluded based on an analysis of recent past performance) or a combination of retrospective and prospective (i.e., the implications of unacceptable FEM performance impacting usage of previously collected data as well as future data). The EPA believes that in most cases, monitoring agencies should be restricted to addressing prospective data issues to provide stability and predictability in the long-term PM
As noted above, in cases where an agency is operating a PM
The goal of proposing to allow monitoring agencies the opportunity to recommend not having data from PM
The EPA believes that an assessment of FEM performance should include several elements based on the original performance criteria. The Agency also believes that certain modifications to the performance criteria are appropriate in recognition of the differences between how monitoring agencies operate routine monitors versus how instrument manufacturers conduct required FRM and FEM testing protocols. The details below summarize these issues. The EPA proposes to use the performance criteria used to approve the FEMs (71 FR 61285 to 61286, Table C-4, October 17, 2006) for those agencies that recommend not having data from PM
The EPA recognizes that only a portion of continuous PM
The EPA solicits comment on all aspects of this proposed approach of allowing monitoring agencies to recommend that PM
c. Revoking PM
The EPA issued revisions to the Ambient Air Monitoring Regulations (40 CFR parts 53 and 58) on October 17, 2006 (71 FR 61236). In the 2006 final rule, the EPA required that PM
As part of the process to further define appropriate techniques for PM
The EPA pilot monitoring project will be completed in 2011, with plans to analyze the data and prepare a final report on findings and recommendations in 2012. At that time, the EPA will consider what PM
The EPA may consider reintroducing some PM
The EPA proposes requirements for sampling of PM
To ensure the CSN network can support its existing network objectives while also supporting the proposed new secondary PM
The EPA proposes that the network design criteria for CSN measurements focus on area-wide locations that are generally representative of long distances throughout a CBSA. For most CBSAs, this will mean that the existing inventory of CSN measurements can be used where the location of the sampling equipment is at an NCore station or other station(s) sited at the neighborhood or urban scale of representation. The EPA points out that while the existing PM
The EPA considered the issue of siting measurements to support a new secondary standard to address PM-related visibility impairment during a consultation with the CASAC AAMMS (75 FR 4069, January 26, 2010). In its letter to the EPA, the CASAC AAMMS stated that “the Subcommittee strongly favored collocation of extinction measurements with PM mass, PM speciation, and precursor gas measurements, identifying continuous
Since EPA's proposal to require CSN (or IMPROVE) sampling is consistent with a network that is largely already in place, there is no expectation new sites will be needed. However, from time to time there is a disruption of sampling due to loss of a sites lease agreement or other circumstances. Therefore, for any state that does not have a minimally required CSN (or IMPROVE) set of measurements in place, the EPA proposes that these measurements be in place and sampling by January 1, 2015.
The EPA believes that the process by which monitoring organizations and the EPA use the appendix A of 40 CFR part 58 regarding quality assurance requirements in regulatory decision making needs to be articulated. Prior interpretations of appendix A have led to disqualification of data for noncompliance with a particular appendix A requirement. The proposed language described below, provides the interpretation the EPA would use moving forward.
The appendix A to 40 CFR part 58 requirements represent a portion of the quality control activities that are implemented by monitoring organizations to control data quality. The EPA believes that while it is essential to require a minimum set of checks and procedures in appendix A to support the successful implementation of a quality system, the success or failure of any one check or series of checks does not preclude the EPA from determining that data are of acceptable quality to be used for regulatory decision-making purposes. The EPA proposes to use a weight-of-evidence approach for determining whether the quality of data is appropriate for regulatory decision-making purposes. Furthermore, the suitability of data for any regulatory purpose also relies, in part, on several other quality-related requirements found elsewhere in 40 CFR part 58. These requirements include air monitoring methodology (appendix C), network design criteria (appendix D) and network design plans for SLAMS, probe siting criteria (appendix E), the reporting of data to AQS, data completeness, and data certification by the reporting organization. This weight of evidence approach recognizes that all measurement systems have uncertainty and there are numerous factors that can affect data quality at a particular monitoring site. The specific appendix A criteria are designed to provide a quantification of this uncertainty, support a framework for assessing such uncertainty against known data quality goals and to support corrective actions when necessary to control uncertainty back to acceptable levels. Accordingly, the EPA proposes additional wording in appendix A to clarify the role that appendix A generated data quality indicators have in the overall quality system that supports ambient air monitoring activities.
The EPA proposes to include requirements for flow rate verifications and flow rate audits for the PM
The EPA performed an assessment of measurement uncertainty from the collocated CSN and IMPROVE stations using the proposed visibility index (Papp, 2012) and concluded that the current data quality goals for the PM
The EPA proposes to allow waivers for the maximum allowable distance associated with collocated PM
The EPA believes that maintaining the current requirement of 1 to 4 meters for PM
The EPA proposes that the probe and siting criteria for the near-road component to the PM
The EPA proposes to extend the existing probe and monitoring path siting criteria described in appendix E to 40 CFR part 58 for PM
The EPA is proposing to reinsert table E-1 to appendix E of 40 CFR part 58. This table presents the minimum separation distance between roadways and probes or monitoring paths for monitoring neighborhood and urban scale ozone (O
In October of 2006, the EPA finalized new requirements for each state, or where applicable, local agency to perform and submit to their EPA Regional Offices an Assessment of the Air Quality Surveillance System (40 CFR 58.10). This assessment is required every five years. The first required five-year assessments were submitted to EPA Regional Offices on or before July 1, 2010. The assessments are intended to provide a comprehensive look at each monitoring agencies ambient air monitoring network to ensure that the network is meeting the minimum monitoring objectives defined in appendix D to 40 CFR part 58, whether new sites are needed, whether existing sites are no longer needed and can be terminated, and whether new technologies are appropriate for incorporation into the ambient air monitoring network.
Since each state has completed their first required five-year assessment, and several monitoring rule requirements have either been added or changed since this requirement was added in 2006, the EPA thinks it is appropriate to review this requirement and solicit comment on any possible changes the EPA should consider that may improve the usefulness of the assessments. Specifically, the EPA solicits comment on ways to either streamline or add additional criteria for future assessments. Even if no changes to the requirements are recommended by any commenters, the EPA is especially interested in learning from monitoring agencies that may have ideas on how to improve future assessments. Such ideas may not necessarily have to be incorporated into regulation, but could be referred to in our guidance on network assessments (U.S. EPA, 2007b).
The EPA proposes to remove references to “community monitoring zones” and “spatial averaging” in the annual monitoring network plans due to EPA Regional Offices by July 1 of each year. The Agency proposes to remove these references since, as discussed in section VII.A.2 above, the EPA is proposing to remove all references to the spatial averaging option throughout 40 CFR part 50 appendix N. Consistent with these changes, the EPA also proposes to remove references to community monitoring zones under the annual monitoring network plans described in 40 CFR 58.10.
The EPA generally requires PM
The EPA had previously considered how sample frequency affects the Data Quality Objectives in a consultation with the CASAC AAMMS in September of 2005 (70 FR 51353 to 51354, August 30, 2005). As a result of that consultation, the EPA proposed (71 FR 2710 to 2808, January 17, 2006) and finalized (71 FR 61236 to 61328, October 17, 2006) changes to the sample frequency requirements as part of the monitoring rule changes in 2006. In that work, the EPA demonstrated that having a higher sample count is generally more useful to minimize uncertainty for a percentile standard than an annual average. Given the proposed strengthening of the primary annual
In a related issue, since the EPA finalized the requirement for daily sampling at sites within 5 percent of the 24-hour PM
c. Data Reporting and Certification for CSN and IMPROVE Data
The EPA solicits comment on minor changes to reporting and certification of data associated with CSN and IMPROVE data. The chemical analyses of filters associated with CSN measurements results in reporting of data that are usually within three months of the sample collection. This fits within the existing reporting requirements for most ambient air measurements that data be reported within 90 days past the end of the previous quarterly reporting period (40 CFR 58.15). However, some agencies also use IMPROVE or their own internal laboratory for processing of chemical analyses. IMPROVE is known to validate and report its data on a schedule that is approximately 12 to 18 months after sample collection. At least one state laboratory continues to provide chemical analysis of filters associated with sites that are not NCore (
The EPA proposes to extend the requirement for archival of PM
The proposed revisions to the primary annual PM
This section also contains a discussion of several requirements of the stationary source construction permit programs under the CAA that may be affected by the proposed revisions of the PM NAAQS. These are
The EPA intends to propose additional appropriate regulations or issue guidance related to the implementation requirements for the revised PM NAAQS at a later date or dates. These may include additional revisions to both the PSD and NNSR regulations, as well as the promulgation of rules or development of guidance related to NAAQS implementation. These actions will be taken on a schedule that provides timely assistance to responsible states. Accordingly, in this section, the EPA solicits comment on several issues that the Agency anticipates will need to be addressed in future guidance or regulatory actions. Because these issues are not relevant to the establishment of the NAAQS, the EPA does not expect to respond, nor is the Agency required to respond, to these comments in the final action on this proposal, but the EPA expects these comments will be helpful as future guidance and regulations are developed.
After the EPA establishes or revises a NAAQS, the CAA requires the EPA and the states to take steps to ensure that the new or revised NAAQS is met. The first step, known as the initial area designations, involves identifying areas of the country that either meet or do not meet the new or revised NAAQS along with the nearby areas contributing to violations.
Section 107(d)(1) of the CAA states that, “By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised national ambient air quality standard for any pollutant under section 109, the Governor of each state shall * * * submit to the Administrator a list of all areas (or portions thereof) in the State” that designates those areas as nonattainment, attainment, or unclassifiable.
Monitoring data are currently available from numerous existing PM
For the reasons stated above, upon promulgation of the revised NAAQS, the EPA currently intends to move forward on the same schedule with the initial area designations for both the revised primary annual PM
In today's action, as discussed in section VIII.B.3.b.i above, the EPA is proposing to add requirements for establishing near-road PM
The EPA recognizes that the number of PM
In summary, the EPA intends to provide designation guidance to the states at the time of the promulgation of revised NAAQS or very shortly thereafter, to assist them in formulating these recommendations. In accordance with section 107(d)(4) of the CAA, the EPA currently believes that state Governors (and tribes, if they choose) should submit their initial designation recommendations for both the revised primary annual PM
As previously stated, the EPA plans to issue guidance regarding designations for the revised PM
The CAA directs states to address basic SIP requirements to implement, maintain, and enforce the standards. States are to develop and maintain an air quality management infrastructure that includes enforceable emission limitations, a permitting program, an ambient monitoring program, an enforcement program, air quality modeling capabilities, and adequate personnel, resources, and legal authority. Under CAA sections 110(a)(1) and 110(a)(2), states are to submit these SIPs within 3 years after promulgation of a new or revised primary standard. While the CAA allows the EPA to set a shorter time for submission of these SIPs, the EPA does not currently intend to do so. Section 110(b) of the CAA provides that the EPA may extend the deadline for the “infrastructure” SIP submission for a new secondary standard by up to 18 months beyond the initial 3 years. If both the revised primary annual PM
Section 110(a)(2) of the CAA includes the following paragraphs describing specific requirements of infrastructure SIPs: (A) Emission limits and other control measures, (B) Ambient air quality monitoring/data system, (C) Programs for enforcement of control measures and for construction or modification of stationary sources, (D)(i) Interstate pollution transport and (D)(ii) Interstate and international pollution abatement, (E) Adequate resources and authority, conflict of interest, and oversight of local governments and
The EPA interprets the CAA such that for two of the section 110(a)(2) elements, both of which pertain to nonattainment area requirements in part D, title I of the CAA, the required submittal date should not be governed by the 3-year submission deadline of section 110(a)(1). Therefore, for the reasons explained below, the following section 110(a)(2) elements are considered by EPA to be outside the scope of infrastructure SIP actions: (1) Section 110(a)(2)(C) to the extent it refers to permit programs (known as “nonattainment new source review”) under part D; and (2) section 110(a)(2)(I) (plan revisions for nonattainment areas) in its entirety. The EPA does not expect infrastructure SIP submittals to include regulations or emission limits developed specifically for attaining the relevant standard in areas designated nonattainment for the proposed revised PM
It is the responsibility of each state to review its air quality management program's infrastructure SIP provisions in light of each revised NAAQS. Most states have revised and updated their infrastructure SIPs in recent years to address requirements associated with revised NAAQS. It may be the case that for a number of infrastructure elements, the state may believe it has adequate state regulations already adopted and approved into the SIP to address a particular requirement with respect to the revised PM NAAQS. For such portions of the state's infrastructure SIP submittal, the state may provide a “certification” specifying that certain existing provisions in the SIP are adequate. Although the term “certification” does not appear in the CAA as a type of infrastructure SIP submittal, the EPA sometimes uses the term in the context of infrastructure SIPs, by policy and convention, to refer to a state's minimal SIP submittal (e.g., in the form of a letter to the EPA from the state Governor or her/his designee).
If a state determines that its existing SIP-approved provisions are adequate in light of the revised PM NAAQS with respect to a given infrastructure SIP element (or sub-element), then the state may make a “certification” that the existing SIP contains provisions that address those requirements of the specific section 110(a)(2) infrastructure elements. In the case of a certification, the submittal does not have to include a copy of the relevant provision (e.g., rule or statute) itself. Rather, the submittal may provide citations to the SIP-approved state statutes, regulations, or non-regulatory measures, as appropriate, which meet the relevant CAA requirement. Like any other SIP submittal, such certification can be made only after the state has provided reasonable notice and opportunity for public hearing. This “reasonable notice and opportunity for public hearing” requirement for infrastructure SIP submittals appears at section 110(a), and it comports with the more general SIP requirement at section 110(l) of the CAA. Under the EPA's regulations at 40 CFR part 51, if a public hearing is held, an infrastructure SIP submittal must include a certification by the state that the public hearing was held in accordance with the EPA's procedural requirements for public hearings. See 40 CFR part 51, appendix V, paragraph 2.1(g), and 40 CFR 51.102.
In consultation with its EPA Regional Office, a state should follow applicable EPA regulations governing infrastructure SIP submittals in 40 CFR part 51—e.g., subpart I (Review of New Sources and Modifications), subpart J (Ambient Air Quality Surveillance), subpart K (Source Surveillance), subpart L (Legal Authority), subpart M (Intergovernmental Consultation), subpart O (Miscellaneous Plan Content Requirements), subpart P (Protection of Visibility), and subpart Q (Reports). For the EPA's general criteria for infrastructure SIP submittals, refer to 40 CFR part 51, appendix V, Criteria for Determining the Completeness of Plan Submissions. A recent EPA guidance memorandum identifies a number of alternatives that are available to states to reduce the administrative burden, cost, and time required to complete the CAA-required steps that are part of submitting infrastructure and other SIP revisions to EPA (McCabe, 2011). The EPA also notes that many of the infrastructure SIP provisions are not NAAQS-specific, and therefore are likely to have been approved as part of SIP actions associated with other recently promulgated NAAQS (e.g., 2006 PM
The EPA intends to issue a separate guidance document on section 110 infrastructure SIP requirements for any revised PM NAAQS. The target date for issuing such guidance would be no later than 1 year after the revised PM NAAQS are finalized (2 years before state submittals are due). The EPA invites preliminary comment on all aspects of infrastructure SIPs at this time, which the Agency will consider in developing future guidance.
Part D of the CAA describes the various program requirements that apply to nonattainment areas for different NAAQS. Section 172 (found in subpart 1 of part D) includes the general SIP requirements that govern the PM
Section 172(a)(1) of the CAA authorizes the EPA to establish classification categories for areas designated nonattainment for the primary or secondary PM NAAQS, but does not require the EPA to do so. The implementation program for the 1997 and 2006 primary and secondary PM
In April 2007, the EPA issued a detailed PM
Under the approach outlined in the implementation rule for the 1997 PM
The evaluation of these potential emission reductions and associated air quality improvement is commonly performed with sophisticated air quality modeling tools. Given that fine particle concentrations are affected both by regionally-transported pollutants (e.g., SO
Each nonattainment area needs to ensure that it will make “reasonable further progress” (RFP) in accordance with section 172(c)(2) of the CAA from the time of SIP submittal to its attainment date. Under the approach outlined in the implementation rule for the 1997 PM
The EPA expects that the same general approach for determining attainment of the 1997 PM
The EPA notes that in other sections of today's proposal, the EPA describes new requirements for deploying near-road monitors and clarifies certain existing monitoring provisions. As discussed in the designations section, the EPA would not expect that data from any new near-road PM
With regard to implementation of the pre-existing standards for PM
As summarized in sections IV.F and VI.F above, the EPA is proposing to retain the current primary and secondary 24-hour PM
In past actions, the EPA has set the secondary PM standards identical to the primary PM standards. In this action, as summarized in section VI.F above, the EPA is proposing a distinct secondary PM
Section 172(a)(1) of the CAA authorizes the EPA to establish classification categories for areas designated nonattainment for the primary or secondary PM NAAQS, but does not require the EPA to do so. The implementation program for the 1997 and 2006 primary and secondary PM
Section 172(a)(2) of the CAA provides the same statutory framework for implementing secondary standards in nonattainment areas as it does for primary standards, except that it provides different attainment date requirements for secondary standards. The attainment date for the proposed revised primary annual PM
As noted in the above section on implementing the primary PM
As noted previously, the EPA expects that implementation of control measures to achieve the 1997 and 2006 primary annual and 24-hour PM
The CAA requires states to include SIP provisions that address the preconstruction review of new stationary sources and the modification of existing sources. The preconstruction review of each new and modified source generally applies on a pollutant-specific basis and the requirements for each pollutant vary depending on whether the area is designated attainment or nonattainment for that pollutant. Parts C and D of title I of the CAA contain specific requirements for the preconstruction review and permitting of new major stationary sources and major modifications, referred to as the PSD program and the NNSR program, respectively. Collectively, those permit requirements are commonly referred to as the “major NSR program.”
The proposed revised primary annual PM
The PSD requirements set forth under part C (sections 160 through 169) of the CAA apply to new major stationary sources and major modifications locating in areas designated as “attainment” or “unclassifiable” with respect to the NAAQS for a particular pollutant. The EPA regulations addressing the statutory requirements under part C for a PSD permit program can be found at 40 CFR 51.166 (containing the PSD requirements for an approved SIP) and 40 CFR 52.21 (the federal PSD permit program). For PSD, a “major stationary source” is one with the potential to emit 250 tons per year (tpy) or more of any air pollutant, unless the source or modification is classified under a list of 28 source categories contained in the statutory definition of “major emitting facility” in section 169(1) of the CAA. For those 28 source categories, a “major stationary source” is one with the potential to emit 100 tpy or more of any air pollutant. A “major modification” is a physical change or a change in the method of operation of an existing major stationary source that results in a significant emissions increase and a significant net emissions increase of a regulated NSR pollutant. Under PSD, new major sources and major modifications must apply best available control technology (BACT) for each applicable pollutant and conduct an air quality analysis to demonstrate that the proposed construction will not cause or contribute to a violation of any NAAQS or PSD increments (see CAA section 165(a)(3); 40 CFR 51.166(k); 40 CFR 52.21(k)). PSD requirements also include in appropriate cases an analysis of potential adverse impacts on Class I areas (see sections 162 and 165 of the CAA).
PSD permitting requirements first became applicable to PM
On October 20, 2010, the EPA again amended the PSD rules at 40 CFR 51.166 and 52.21 to add PSD increments as well as two screening tools for PM
The PSD program currently regulates emissions of PM using several indicators of particles, including “particulate matter emissions” (as regulated under various new source performance standards under 40 CFR part 60), “PM
In addition to the NAAQS revisions themselves, for which proposed and other possible implementation approaches are described further below, the EPA is proposing certain clarifications to the existing monitoring regulations codified at 40 CFR 58.30 (Special considerations for data comparisons to the NAAQS). These proposed clarifications are presented in detail in section VIII.B.2 of this preamble. The monitoring regulations provide a basis for determining whether specific monitoring sites are comparable to specific NAAQS. By extension, the EPA has used the principles for making these determinations for monitoring sites to also guide permitting authorities in assessing the comparability of specific receptor locations involved in PSD air quality analyses. Receptors are used in PSD modeling analyses to predict potential air quality impacts in the vicinity of the proposed new or modified facility and in some cases also at more distant Class I areas. The EPA will continue to use these principles in guiding PSD modeling analysis design. Accordingly, if the proposed PM NAAQS revisions and monitoring regulation clarifications described previously are finalized, the EPA will advise permitting agencies to qualify or disqualify specific receptor locations used in PSD air quality analyses consistent with those final provisions, and we will do so ourselves when we are the permitting authority.
With regard to the specific revisions being proposed to the PM NAAQS, today's action, if finalized as proposed, would affect sources applying for PSD permits in several ways. We first discuss the implications for PSD with respect to the proposed revised primary annual PM
As discussed previously in this preamble, the EPA is proposing to revise the level of the primary annual PM
In order to provide for a reasonable transition into the new PSD permitting requirements that will result from the proposed revision of the primary annual NAAQS, the proposed addition of a distinct secondary NAAQS for visibility protection, and the changes to the monitoring requirements discussed earlier, the EPA proposes to add a grandfathering provision to the federal PSD program codified at 40 CFR 52.21 that would apply to certain PSD permit applications that are pending on the effective date of the revised PM NAAQS. The EPA proposes that the grandfathering provision would apply specifically to pending PSD permit applications for which the proposed permit (draft permit or preliminary determination) has been noticed for public comment before the effective date of the revised NAAQS.
The proposed grandfathering provision would not be the first such grandfathering provision adopted by the EPA. The Agency previously recognized that the CAA provides discretion for the EPA to grandfather PSD permit applications from requirements that become applicable while the application is pending (45 FR 52683, Aug. 7, 1980; 52 FR 24672, July 1, 1987; U.S. EPA, 2011c, pp. 54 to 61). As discussed in more detail in these referenced actions, section 165(a)(3) of the CAA requires that a permit applicant demonstrate that its proposed project will not cause or contribute to a violation of any NAAQS. At the same time, section 165(c) of the CAA requires that a PSD permit be
The CAA provides the EPA with discretion to establish the appropriate milestone within the permitting process for determining that a permit application is eligible for grandfathering (U.S. EPA, 2011c, p. 81). For example, in 1987, the EPA used the date of submittal of a complete permit application as the milestone upon which to base the grandfathering of a source from new permitting requirements associated with the revisions made to the PM NAAQS at that time (52 FR 24672, July 1, 1987 at 24703). In the context of the implementation of the revisions to the PM NAAQS that are being proposed today, the EPA is proposing to use a different milestone to establish the date before which permits may be grandfathered. Accordingly, to avoid unreasonable delays in permit processing and issuance, and based on basic principles of fairness and equity, we believe that it is appropriate to allow pending permit applications that have reached the notice and comment period on a proposed permit (that is, a notice has been issued for public comment on the proposed permit action) by the effective date of the revised PM NAAQS to continue being processed in accordance with the PM NAAQS requirements in place as the time of the public notice on the proposed permit.
Before a proposed permit is issued for public comment, the applicant still has a reasonable opportunity to amend its permit application to address new or revised NAAQS that become effective while the reviewing authority's preliminary consideration of the application is underway. Furthermore, the reviewing authority has the opportunity to review additional material and revise its fact sheet or statement of basis before beginning the public comment period on such a permit. However, if the EPA and other reviewing authorities were to apply new permitting requirements based on the revised PM NAAQS after the public comment period has begun, this would unduly delay the processing of the permit application by potentially requiring an additional public comment period and additional work by the reviewing authority at a time when it should be focused on considering public comments and preparing a final permit decision in order to conclude its review of a permit application in a timely manner. Through this proposal, the EPA is providing notice to current and future permit applicants that they may have to provide an analysis showing that their facility will not cause or contribute to a violation of the revised NAAQS for PM if a proposed permit is not issued for public comment before such NAAQS become effective.
Accordingly, the EPA proposes to amend the federal PSD regulations at 40 CFR 52.21 to provide a grandfathering provision to allow for the continued review of permits proposed before a revision to the 2006 p.m. NAAQS under the PM NAAQS that applied at the time of the public notice on the proposed permit. The EPA also proposes that states that issue PSD permits under a SIP-approved PSD permit program should have the discretion to “grandfather” proposed PSD permits in the same manner under these same circumstances. Thus, the EPA also proposes to revise section 40 CFR 51.166 to provide a comparable exemption applicable to SIP-approved PSD programs.
In developing the proposed grandfathering provision, the EPA considered whether such a provision should include a sunset clause. A sunset clause would add a time limit beyond which an otherwise eligible permit action would no longer be grandfathered from PSD permitting requirements associated with a revised PM NAAQS. Consistent with past grandfathering actions described above, the EPA is not proposing to include a sunset clause for the proposed grandfathering provision. Permit applicants and reviewing authorities already have strong incentives to process applications and issue draft permits in a timely manner, and the EPA does not believe that the addition of a sunset clause to the proposed grandfathering provision would add meaningful additional incentive for sources or permitting authorities to expedite permitting processes. Furthermore, the EPA believes that a sunset clause could in fact result in further delays for permit actions that qualify for the proposed grandfathering provision in circumstances where unrelated and not reasonably avoidable factors cause draft permit issuance and public notice to lapse beyond the sunset date. In such cases, the already delayed permit action would be further delayed to address PSD permitting requirements associated with the revised PM NAAQS, potentially triggering a domino effect of newly applicable requirements. As such, the EPA believes a sunset clause would diminish the value of the grandfathering provision and likely introduce additional complexities in relation to specific permit actions. However, the EPA solicits comment on whether a sunset clause would be appropriate under certain circumstances, and if so, what time limits would be placed on the grandfathering period associated with the revised PM NAAQS.
Today's proposal to revise the level of the primary annual PM
PSD applicants are currently required to demonstrate compliance with the existing primary and secondary annual and 24-hour PM
As summarized in section VI.F of this preamble, the EPA is proposing a distinct secondary NAAQS for PM
As explained above, the PSD program requires individual new or modified stationary sources to carry out an air quality analysis to demonstrate that their proposed emissions increases will not cause or contribute to a violation of any NAAQS. Such a demonstration for the proposed secondary PM
Recognizing these difficult technical issues, the EPA believes that there is an essential need to provide alternative approaches to enable prospective PSD sources to demonstrate that they will not cause or contribute to a violation of the secondary PM
To support consideration of alternative approaches that could be used by prospective PSD sources, the EPA conducted a two-pronged technical analysis of the relationships between the proposed PM
The EPA believes that this technical analysis is robust and will have broad national application. Based on this technical analysis, the EPA currently believes that there is sufficient evidence that, for the purposes of making a demonstration under the PSD program that a new or modified source will not cause or contribute to a violation of the proposed secondary 24-hour PM
The surrogacy approach is not intended to replace or otherwise undermine the validity of the analytical techniques employed for air quality related value (AQRV) assessments, including visibility, required under 40 CFR 51.166(p) and 40 CFR 52.21(p). The federal land managers (FLM)—federal officials with direct responsibility for management of Federal Class I parks and wilderness areas—have an affirmative responsibility to protect the AQRVs of such lands, and to provide the appropriate procedures and analysis techniques for assessing AQRVs (Appendix W to 40 CFR part 51, Sections 6.1(b) and 6.2.3(a)). The FLMs have developed specific modeling approaches for AQRV assessments that are not specifically governed under the requirements set forth in 40 CFR 51.166(l)(1) and 40 CFR 52.21(l)(1), thus the surrogacy approach is not applicable to the AQRV assessments under the PSD program.
The surrogate approach could be incorporated into the PSD program in any of three alternative ways. First, the decision as to whether the surrogate approach is adequate could be handled on a case-by-case basis in consultation with the permitting authority, similar to the existing consultation process under the EPA's Guideline on Air Quality Models for ozone and secondary PM
While noting the importance of the surrogacy approach as an essential initial strategy due to limitations on data and analytical tools, the EPA also notes that when a technically robust surrogate relationship exists there may not be a need to apply an end date for the use of a surrogacy approach. Without an end date, PSD applicants would always have the option of relying upon such a demonstration if they would so choose. This would offer long-term benefits in terms of simplification and resource savings for applicants and reviewing authorities. Accordingly, based on the technical analysis for the standards analyzed (Kelly, et al, 2012) which supports the surrogacy approach for demonstrating that a source will not cause or contribute to a violation of the proposed secondary PM
For context, the EPA notes that with regard to sources being required to demonstrate that they would not cause or contribute to a violation of the 1997 PM
The EPA notes that the analysis supporting the surrogacy approach for the PSD program is distinct from and serves a different purpose than the analyses conducted to inform the Administrator's proposed conclusion on the appropriate indicator for a standard intended to protect against PM-related visibility impairment. As discussed in section VI.A above, the EPA has long recognized that the determination of a single, appropriate national level for a secondary standard to address PM-related visibility impairment is complicated by regional differences in several factors that influence visibility, such as background and current PM
The EPA has historically allowed the use of screening tools to help facilitate the implementation of the NSR program by reducing the permit applicant's burden and streamlining the permitting process for circumstances where emissions or concentrations could be considered
Once it is determined that the proposed new source or modification is significant for PM
Historically, sources have been allowed to model their proposed emissions increase to predict ambient impacts associated with that emissions increase, and to compare this predicted ambient concentration of PM
While the proposed secondary PM
The EPA is not proposing any possible alternatives to the existing 24-hour PM
Finally, the SMC, also measured as an ambient pollutant concentration (µg/m
Section 166(a) of the CAA requires the EPA to promulgate “regulations to prevent the significant deterioration of air quality” for pollutants covered by the NAAQS. Among other things, the EPA has implemented this requirement through promulgation of PSD increments. The EPA promulgated PM
In this proposal, the EPA is not proposing to revise the PM
The requirements under part D of the CAA pertain to the preconstruction review and permitting requirements for new major stationary sources and major modifications locating in areas designated “nonattainment” for a particular pollutant. Those requirements are commonly referred to as the NNSR program. The EPA regulations for the NNSR program are contained at 40 CFR 51.165, 52.24 and part 51, appendix S.
For NNSR, “major stationary source” is generally defined as a source with the potential to emit at least 100 tpy or more of a pollutant for which an area has been designated “nonattainment.” Thus, the NNSR program applies to pollutants for which the EPA has promulgated NAAQS. Because the EPA has defined the PM NAAQS, and has established area designations for PM, in terms of two separate indicators—PM
For a major modification, the NNSR rules rely upon SERs described previously in the PSD discussion in section IX.F.1. For NNSR, a major modification is a physical change or a change in the method of operation of an existing stationary source that is major for the nonattainment pollutant and that results in a significant net emissions increase of that nonattainment pollutant. As described earlier, the EPA will be evaluating the existing SERs for PM
The EPA has designated nonattainment areas for the existing primary annual and 24-hour PM
New major stationary sources or major modifications based on PM
Transportation conformity is required under CAA section 176(c) to ensure that transportation plans, transportation improvement programs (TIPs) and federally supported highway and transit projects will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant NAAQS or interim reductions and milestones. Transportation conformity applies to areas that are designated nonattainment and maintenance for transportation-related criteria pollutants: Carbon monoxide, ozone, NO
As discussed in section VIII above, the EPA is proposing certain clarifying changes to PM
If the EPA finalizes these changes to the monitoring regulations, the EPA will update its guidance on quantitative PM
General conformity is required by CAA section 176(c). This section requires that federal agencies do not adopt, accept, approve, or fund activities that are not consistent with state air quality goals. General conformity applies to any federal action
Under section 3(f)(1) of Executive Order 12866 (58 FR 51735, October 4, 1993), this action is an “economically significant regulatory action” because it is likely to have an annual effect on the economy of $100 million or more. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011), and any changes made in response to OMB recommendations have been documented in the docket for this action.
In addition, the EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in
The estimates in the RIA are associated with alternative levels (in μg/m
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.S. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. Rather, this rule establishes national standards for allowable concentrations of particulate matter in ambient air as required by section 109 of the CAA.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements section 205 of the UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action imposes no new expenditure or enforceable duty on any state, local, or tribal governments or the private sector, and the EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments.
Furthermore, in setting a NAAQS, the EPA cannot consider the economic or technological feasibility of attaining ambient air quality standards, although such factors may be considered to a degree in the development of state plans to implement the standards.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule does not alter the relationship between the Federal government and the states regarding the establishment and implementation of air quality improvement programs as codified in the CAA. Under section 109 of the CAA, the EPA is mandated to establish and review NAAQS; however, CAA section 116 preserves the rights of states to establish more stringent requirements if deemed necessary by a state. Furthermore, this proposed rule does not impact CAA section 107 which establishes that the states have primary responsibility for implementation of the NAAQS. Finally, as noted in section D (above) on UMRA, this rule does not impose significant costs on state, local, or Tribal governments or the private sector. Thus, Executive Order 13132 does not apply to this action.
However, as also noted in section D (above) on UMRA, the EPA recognizes that states will have a substantial interest in this rule and any corresponding revisions to associated air quality surveillance requirements, 40 CFR part 58. Therefore, in the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from state and local officials.
The action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have a substantial direct effect on one or more Indian Tribes, since Tribes are not obligated to adopt or implement any NAAQS. The Tribal Authority Rule gives Tribes the opportunity to develop and implement CAA programs such as the PM NAAQS, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, they will adopt. Thus, Executive Order 13175 does not apply to this rule.
Although Executive Order 13175 does not apply to this rule, the EPA consulted with tribal officials or other representatives of tribal governments in developing this action.
The EPA specifically solicits additional comments on this proposed rule from tribal officials.
This action is subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is an economically significant regulatory action as defined by Executive Order 12866, and the EPA believes that the environmental health or safety risk addressed by this action may have a disproportionate effect on children. Accordingly, we have evaluated the environmental health or safety effects of PM exposures on children. The protection offered by these standards may be especially important for children because childhood represents a lifestage associated with increased susceptibility to PM-related health effects. Because children have been identified as a susceptible population, we have carefully evaluated the environmental health effects of exposure to PM pollution among children. Discussions of the results of the evaluation of the scientific evidence and policy considerations pertaining to children are contained in sections III.B, III.D, IV.B, and IV.C of this preamble. A listing of documents that contain the evaluation of scientific evidence and policy considerations that pertain to children is found in the section on Children's Environmental Health in the Supplementary Information section of this preamble, and a copy of all documents have been placed in the public docket for this action.
The public is invited to submit comments or identify peer-reviewed studies and data that assess effects of early life exposure to PM.
This action is not a “significant energy action” as defined in Executive Order 13211, (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The purpose of this action concerns the review of the NAAQS for PM. The action does not prescribe specific pollution control strategies by which these ambient standards will be met.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This proposed rulemaking involves technical standards for environmental monitoring and measurement. Specifically, the EPA proposes to retain the indicators for fine (PM
To the extent feasible, the EPA employs a Performance-Based Measurement System (PBMS), which does not require the use of specific, prescribed analytic methods. The PBMS is defined as a set of processes wherein the data quality needs, mandates or limitations of a program or project are specified, and serve as criteria for selecting appropriate methods to meet those needs in a cost-effective manner. It is intended to be more flexible and cost effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. Though the FRM defines the particular specifications for ambient monitors, there is some variability with regard to how monitors measure PM, depending on the type and size of PM and environmental conditions. Therefore, it is not practically possible to fully define the FRM in performance terms to account for this variability. Nevertheless, our approach in the past has resulted in multiple brands of monitors being approved as FRM for PM, and we expect this to continue. Also, the FRMs described in 40 CFR part 50 and the equivalency criteria described in 40 CFR part 53, constitute a performance-based measurement system for PM, since methods that meet the field testing and performance criteria can be approved as FEMs. Since finalized in 2006 (71 FR, 61236, October 17, 2006) the new field and performance criteria for approval of PM
For the proposed secondary standard defined in terms of a calculated PM
The EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially applicable voluntary consensus standards for any of the proposed indicators with an explanation as to why such standards should be used in this regulation.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The EPA maintains an ongoing commitment to ensure environmental justice for all people, regardless of race, color, national origin, or income. Ensuring environmental justice means not only protecting human health and the environment for everyone, but also ensuring that all people are treated fairly and are given the opportunity to participate meaningfully in the development, implementation, and enforcement of environmental laws, regulations, and policies. The EPA has identified potential disproportionately high and adverse effects on minority and/or low-income populations from this proposed rule.
The EPA has identified persons from lower socioeconomic strata as a susceptible population for PM-related health effects. As a result, the EPA has carefully evaluated the potential impacts on low-income and minority populations as discussed in section III.E.3.a of this preamble. The Agency expects this proposed rule would lead to the establishment of uniform NAAQS for PM. The Integrated Science
The public is invited to submit comments or identify peer-reviewed studies and data that assess effects of PM on low-income populations and minority populations.
Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Environmental protection, Administrative practices and procedures, Air pollution control, Intergovernmental relations.
Environmental protection, Administrative practices and procedures, Air pollution control, Intergovernmental relations.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, chapter I of title 40 of the
1. The authority citation for part 50 continues to read as follows:
42 U.S.C. 7401 et seq.
2. Table 1 in § 50.14(c)(2)(vi) is revised to read as follows:
(c) * * *
(2) * * *
(vi) * * *
3. Add § 50.18 to read as follows:
(a) The national primary ambient air quality standards for PM
(1) A reference method based on appendix L of this part and designated in accordance with part 53 of this chapter; or
(2) An equivalent method designated in accordance with part 53 of this chapter.
(b) The primary annual PM
(c) The primary 24-hour PM
4. Add § 50.19 to read as follows:
(a) The following national secondary ambient air quality standard for PM is in addition to the national secondary ambient air quality standards for PM
(1) [30 or 28] deciviews (dv), 24-hour average concentration, based on a calculated PM
(2) [Reserved].
(b) The 24-hour secondary PM
5. Appendix N to part 50 is revised to read as follows:
(a) This appendix explains the data handling conventions and computations
(b) Decisions to exclude, retain, or make adjustments to the data affected by exceptional events, including natural events, are made according to the requirements and process deadlines specified in §§ 50.1, 50.14, and 51.930 of this chapter.
(c) The terms used in this appendix are defined as follows:
The
The
(1) The 3-year average of PM
(2) The 3-year average of annual 98th percentile 24-hour average PM
(3) The 3-year average of annual 90th percentile 24-hour average PM
The
The
(a) Section 58.30 of this chapter provides special considerations for data comparisons to the annual PM
(b) Monitors meeting the network technical requirements detailed in § 58.11 of this chapter are suitable for comparison with the NAAQS for PM
(c) Section 58.12 of this chapter specifies the required minimum frequency of sampling for PM
(a) Except as otherwise provided in this appendix, all valid FRM/FEM/ARM PM
(b) PM
(c) Block 24-hour average concentrations will be computed in AQS from submitted hourly PM
(d) All calculations shown in this appendix shall be implemented on a site-level basis. Site level concentration data shall be processed as follows:
(1) The default dataset for PM
(2) Data for the primary monitors shall be augmented as much as possible with data from collocated monitors. If a daily value is not produced by the primary monitor for a particular day (scheduled or otherwise), but a value is available from a collocated monitor, then that collocated value shall be considered part of the combined site data record. If more than one collocated daily value is available, the average of those valid collocated values shall be used as the daily value. The data record resulting from this procedure is referred to as the “combined site data record.”
(e) All daily values in a combined site data record are used in the calculations specified in this appendix, however, not all daily values are given credit towards data completeness requirements. Only creditable samples are given credit for data completeness. Creditable samples include daily values in the combined site record that are collected on scheduled sampling days and valid make-up samples taken for missed or invalidated samples on scheduled sampling days. Days are considered scheduled according to the required sampling frequency of the designated primary monitor with one exception for aggregated PM
(a) The primary annual PM
(b) Three years of valid annual means are required to produce a valid annual PM
(c) In the case of one, two, or three years that do not meet the completeness requirements of section 4.1(b) of this appendix and thus would normally not be useable for the calculation of a valid annual PM
(1) An annual PM
(2) An annual PM
(3) An annual PM
(d) An annual PM
(e) The equations for calculating the annual PM
(a) The primary and secondary 24-hour PM
(b) Three years of valid annual PM
(c) In the case of one, two, or three years that do not meet the completeness requirements of section 4.2(b) of this appendix and thus would normally not be useable for the calculation of a valid 24-hour PM
(1) A PM
(2) A 24-hour PM
(d) A 24-hour PM
(e) The procedures and equations for calculating the 24-hour PM
For the purposes of comparing calculated PM
(a) Annual PM
(b) Twenty-four-hour PM
(a) An annual mean value for PM
(b) Equation 2 of this appendix is then used to calculate the site annual mean:
(c) The annual PM
(d) The annual PM
(a) When the data for a particular site and year meet the data completeness requirements in section 4.2 of this appendix, calculation of the 98th percentile is accomplished by the steps provided in this subsection. Table 1 of this appendix shall be used to identify annual 98th percentile values. Identification of annual 98th percentile values using the Table 1 procedure will be based on the creditable number of samples (as described below), rather than on the actual number of samples. Credit will not be granted for extra (non-creditable) samples. Extra samples, however, are candidates for selection as the annual 98th percentile. [The creditable number of samples will determine how deep to go into the data distribution, but all samples (creditable and extra) will be considered when making the percentile assignment.] The annual creditable number of samples is the sum of the four quarterly creditable number of samples.
(b) The 24-hour PM
(c) The 24-hour PM
(a) The secondary PM
(b) Three years of valid annual 90th percentile concentrations of 24-hour average PM
(c) Rounding Conventions: For the purposes of calculating PM
(1) Daily deciview values shall be rounded to the nearest 0.1 deciview (decimals 0.x5 and greater are rounded up to the next tenth, and any decimal lower than 0.x5 is rounded down to the stated tenth).
(2) The PM
(d) Procedures and Equations for the Secondary PM
(1) The five major speciation components (Sulfate, Nitrate, OM, EC, and FS) are derived from reported concentrations of
(2) Daily estimates of PM
(3) Daily estimates of PM
(4) Identification of annual 90th percentile PM
(5) The PM
6. The authority citation for part 51 continues to read as follows:
23 U.S.C. 101; 42 U.S.C. 7401-7671
7. In § 51.166, add paragraph (i)(10) to read as follows:
(i)
(10) The plan may provide that the requirements of paragraph (k)(1) of this section shall not apply to a stationary source or modification with respect to the national ambient air quality standards for PM
8. The authority citation for part 52 continues to read as follows:
42 U.S.C. 7401,
9. In § 52.21, add paragraph (i)(11) to read as follows:
(i) * * *
(11) The requirements of paragraph (k)(1) of this section shall not apply to a stationary source or modification with respect to the national ambient air quality standards for PM
10. The authority citation for part 53 continues to read as follows:
Section 301(a) of the Clean Air Act (42 U.S.C. 1857g(a)), as amended by sec. 15(c)(2) of Pub. L. 91-604, 84 Stat. 1713, unless otherwise noted.
11. In § 53.9, revise paragraph (c) to read as follows:
(c) Any analyzer, PM
12. The authority citation of part 58 continues to read as follows:
42 U.S.C. 7403, 7405, 7410, 7414, 7601, 7611, 7614, and 7619.
13. Section 58.1 is amended by adding in alphabetical order a definition for “Area-wide” and by removing the definition for “Community monitoring zone (CMZ)”.
The addition reads as follows:
14. Section 58.10 is amended as follows:
a. By adding paragraph (a)(8).
b. By adding paragraph (b)(13).
c. By revising paragraph (c).
d. By revising paragraph (d).
The additions and revisions read as follows:
(a) * * *
(8) A plan for establishing near-road PM
(b) * * *
(13) The identification of any PM
(c) The annual monitoring network plan must document how state and local agencies provide for the review of changes to a PM
(d) The state, or where applicable local, agency shall perform and submit to the EPA Regional Administrator an assessment of the air quality surveillance system every 5 years to determine, at a minimum, if the network meets the monitoring objectives defined in appendix D to this part, whether new sites are needed, whether existing sites are no longer needed and can be terminated, and whether new technologies are appropriate for incorporation into the ambient air monitoring network. The network assessment must consider the ability of existing and proposed sites to support air quality characterization for areas with relatively high populations of susceptible individuals (e.g., children with asthma), and, for any sites that are being proposed for discontinuance, the effect on data users other than the agency itself, such as nearby states and tribes or health effects studies. The state, or where applicable local, agency must submit a copy of this 5-year assessment, along with a revised annual network plan, to the Regional Administrator. The assessments are due every five years beginning July 1, 2010.
15. Section 58.11 is amended by adding paragraph (e) to read as follows:
(e) State and local governments must assess data from Class III PM
(1) The acceptable concentration range (Rj), µg/m
(2) The minimum number of test sites shall be at least one; however, the number of test sites will generally include all locations within an agency's network with collocated FRMs and FEMs or ARMs.
(3) The minimum number of methods shall include at least one FRM and at least one FEM or ARM.
(4) Since multiple FRMs and FEMs may not apply; the precision statistic requirement does not apply, even if precision data are available.
(5) All seasons must be covered with no more than three years in total aggregated together.
16. Section 58.12 is amended by revising paragraph (d)(1)(iii) and by removing and reserving paragraph (f)(2).
The revision reads as follows:
(d) * * *
(1) * * *
(iii) Required SLAMS stations whose measurements determine the design value for their area and that are within plus or minus 5 percent of the 24-hour PM
17. Section 58.13 is amended by adding paragraphs (f) and (g) to read as follows:
(f) PM
(g) CSN (or IMPROVE) monitoring stations required as described in appendix D to this part not already operational, must be physically established no later than January 1, 2015, and at that time must be operating under all of the requirements of this part, including the requirements of appendices A, C, D, and E to this part.
18. Section 58.16 is amended by revising paragraphs (a) and (f) to read as follows:
(a) The state, or where appropriate, local agency, shall report to the Administrator, via AQS all ambient air quality data and associated quality assurance data for SO
(f) The state, or where applicable, local agency shall archive all PM
19. Section 58.20 is amended by revising paragraph (c) to read as follows:
(c) All data from an SPM using an FRM, FEM, or ARM which has operated for more than 24 months are eligible for comparison to the relevant NAAQS, subject to the conditions of §§ 58.11(e) and 58.30, unless the air monitoring agency demonstrates that the data came from a particular period during which the requirements of appendix A, appendix C, or appendix E to this part were not met, subject to review and EPA Regional Office approval as part of the annual monitoring network plan described in § 58.10.
20. The heading for Subpart D is revised to read as set forth above.
21. Section 58.30 is amended by revising paragraph (a) to read as follows:
(a)
(1) PM
(2) PM
22. Appendix A to part 58 is amended as follows:
a. By redesignating the existing introductory paragraph in section 1 as paragraph (c) in section 1 and revising it.
b. By adding paragraph (a) to section 1.
c. By adding paragraph (b) to section 1.
d. By revising paragraph 1.1.3.
e. By revising paragraphs 3.2.3, 3.2.4, 3.2.5.6, and 3.2.6.3.
f. By adding paragraph 3.2.9.
g. By revising paragraphs 3.3.2 and 3.3.3.
h. By adding paragraph 3.3.9.
i. By revising paragraphs (b) and (c) in section 4.
j. By adding paragraph (c)(6) in section 4.
k. By revising paragraph 4.3 and 4.3.1.
l. By revising Tables A-1 and A-2.
The revisions and additions read as follows:
1. * * *
(a) For this Appendix, the term “PM
(b) Each monitoring organization is required to implement a quality system that provides sufficient information to assess the quality of the monitoring data. The quality system must, at a minimum, include the specific requirements described in this appendix of this subpart. Failure to conduct or pass a required check or procedure, or a series of required checks or procedures, does not by itself invalidate data for regulatory decision making. Rather, the checks and procedures required in this appendix shall be used in combination with other data quality information, reports, and similar documents showing overall compliance with part 58 by the monitoring agencies and by EPA, and using a “weight of evidence” approach when determining the suitability of data for regulatory decisions. The EPA reserves the authority to use or not use monitoring data submitted by a monitoring organization when making regulatory decisions based on the EPA's assessment of the quality of the data. Generally, consensus built validation templates or validation criteria already approved in Quality Assurance Project Plans (QAPPs) should be used as the basis for the weight of evidence approach.
(c) This appendix specifies the minimum quality system requirements applicable to SLAMS air monitoring data and PSD data for the pollutants SO
1.1.3 The requirements for precision assessment for the automated methods are the same for both SLAMS and PSD. However, for manual methods, only one collocated site is required for PSD. PM
3. * * *
3.2 * * *
3.2.3 Flow Rate Verification for Particulate Matter. A one-point flow rate verification check must be performed at least once every month on each automated analyzer used to measure PM
3.2.4 Semi-Annual Flow Rate Audit for Particulate Matter. Every 6 months, audit the flow rate of the PM
3.2.5 * * *
3.2.5.6 The two collocated monitors must be within 4 meters of each other and at least 2 meters apart for flow rates greater than 200 liters/min or at least 1 meter apart for samplers having flow rates less than 200 liters/min to preclude airflow interference. A waiver of up to 10 meters between a primary and collocated sampler may be approved by the Regional Administrator for sites at a neighborhood or larger scale of representation. Calibration, sampling, and analysis must be the same for all the collocated samplers in each agency's network.
3.2.6 * * *
3.2.6.3 The two collocated monitors must be within 4 meters of each other and at least 2 meters apart for flow rates greater than 200 liters/min or at least 1 meter apart for samplers having flow rates less than 200 liters/min to preclude airflow interference. A waiver of up to 10 meters between a primary and a collocated sampler may be approved by the Regional Administrator for sites at a neighborhood or larger scale of representation taking into consideration safety, logistics, and space availability. Calibration, sampling, and analysis must be the same for all the collocated samplers in each agency's network.
3.2.9 Collocated Sampling Procedures for PM
3.2.9.1 The two collocated monitors must be within 4 meters of each other and at least 2 meters apart for flow rates greater than 200 liters/min or at least 1 meter apart for samplers having flow rates less than 200 liters/min to preclude airflow interference. Calibration, sampling, and analysis must be the same for all the collocated samplers in each agency's network.
3.2.9.2 Sample the collocated audit monitor on a 12-day schedule. Report the measurements from both primary and collocated audit monitors at each collocated sampling site. The calculations for evaluating precision between the two collocated monitors are described in section 4.3.1 of this appendix.
3.3 * * *
3.3.2 Flow Rate Verification for Particulate Matter. Follow the same procedure as described in section 3.2.3 of this appendix for PM
3.3.3 Semi-Annual Flow Rate Audit for Particulate Matter. Follow the same procedure as described in section 3.2.4 of this appendix for PM
Great care must be used in auditing high-volume particulate matter samplers having flow regulators because the introduction of resistance plates in the audit flow standard device can cause abnormal flow patterns at the point of flow sensing. For this reason, the flow audit standard should be used with a normal filter in place and without resistance plates in auditing flow-regulated high-volume samplers, or other steps should be taken to assure that flow patterns are not perturbed at the point of flow sensing.
3.3.9 Collocated Sampling Procedures for PM
4. * * *
(b) The EPA will provide annual assessments of data quality aggregated by site and primary quality assurance organization for SO
(c) At low concentrations, agreement between values (measurements or calculations) of collocated samplers, expressed as relative percent difference or percent difference, may be relatively poor. For this reason, collocated pairs are selected for use in the precision and bias calculations only when both values are equal to or above the following limits:
(6) PM
4.3.1 Precision Estimate. Precision for collocated instruments for PM
23. Appendix C to part 58 is amended as follows:
a. By revising paragraph 2.9.
b. In section 6.0 by adding references 8 through 13.
PM
2.9.1 Use of IMPROVE Samplers at a SLAMS Site. IMPROVE samplers may be used in SLAMS for monitoring of regional background and regional transport concentrations of fine particulate matter. The IMPROVE samplers were developed for use in the IMPROVE network to characterize all of the major components and many trace constituents of the particulate matter that impair visibility in Federal Class I Areas.
2.9.2 Use of CSN or IMPROVE sampling methods at a SLAMS site to provide chemical species data used in the PM
8. Quality Assurance Project Plan: PM
9. Standard Operating Procedure for the X-Ray Fluorescence Analysis of Particulate Matter Deposits on Teflon Filters, RTI International, Research Triangle Park, NC. August 19, 2009.
10. Standard Operating Procedure for PM
11. Standard Operating Procedure for PM
12. Standard Operating Procedure for Cleaning Nylon Filters Used for the Collection of PM
13. DRI Standard Operating Procedure #2-216r2—DRI Model 2001 Thermal/Optical Carbon Analysis (TOR/TOT) of Aerosol Filter Samples—Method IMPROVE_A, Reno, NC, Revised July 2008.
24. Appendix D to part 58 is amended as follows:
a. By revising paragraphs 4.7.1(b), 4.7.1(c)(1), and 4.7.4
b. By removing paragraph 4.7.5
c. By removing and reserving paragraph 4.8.2
4. * * *
4.7 * * *
4.7.1* * *
(b) Specific Design Criteria for PM
(1) At least one monitoring station is to be sited in an area of expected maximum concentration.
(2) For MSAs with a population over 1,000,000, at least one PM
(3) For areas with additional required SLAMS, a monitoring station is to be sited in an area of poor air quality.
(4) Additional technical guidance for siting PM
(c) * * *
(1)
4.7.4 PM
(a) Each state shall continue to conduct chemical speciation monitoring and analysis at sites designated to be part of the PM
(b) For purposes of supplying chemical species data for use in the calculated PM
(1) Operation of CSN or IMPROVE measurements is only required in states having at least one CBSA with a population of 1,000,000 or more people; however, multiple CBSAs with a population of 1,000,000 or more people in the same state are not each required to have CSN or IMPROVE methods operating at SLAMS unless specified below.
(2) The requirement to operate at least one CSN or IMPROVE monitoring station in a CBSA at a SLAMS shall be considered met by any approved NCore or STN station operating in a CBSA within the state.
(3) All CBSAs with a population of 2,500,000 or more people shall be required to have at least one CSN or IMPROVE monitoring station at a SLAMS within the CBSA; alternatively, the CSN or IMPROVE monitoring station may be sited in another CBSA adjacent to or downwind of the CBSA with a population of 2,500,000 or more people, when the alternative CBSA is expected to have a higher design value for the secondary PM NAAQS for visibility impairment.
(4) When siting additional CSN or IMPROVE monitoring equipment at SLAMS, the location of the monitoring site can be either a representative area-wide location for the CBSA or in an area-wide location of expected maximum concentration.
25. Appendix E to part 58 is amended as follows:
a. By adding paragraph (d) to section 1.
b. By adding table E-1 to section 6 after paragraph (c) introductory text.
c. By revising table E-4 in section 11.
1. * * *
(d) PM
6. * * *
11. * * *
26. Appendix G to Part 58 is amended:
a. By revising sections 9 and 10.
b. By revising paragraph 12.i.a and table 2 in 12.i.d.
c. By revising section 13.
The revisions read as follows:
For each pollutant, the AQI transforms ambient concentrations to a scale from 0 to 500. The AQI is keyed as appropriate to the national ambient air quality standards (NAAQS) for each pollutant. In most cases, the index value of 100 is associated with the numerical level of the short-term standard (i.e., averaging time of 24 hours or less) for each pollutant. The index value of 50 is associated with the numerical level of the annual standard for a pollutant, if there is one, at one-half the level of the short-term standard for the pollutant, or at the level at which it is appropriate to begin to provide guidance on cautionary language. Higher categories of the index are based on increasingly serious health effects and increasing proportions of the population that are likely to be affected. The index is related to other air pollution concentrations through linear interpolation based on these levels. The AQI is equal to the highest of the numbers corresponding to each pollutant. For the purposes of reporting the AQI, the sub-indexes for PM
You must use concentration data from State/Local Air Monitoring Station (SLAMS) or parts of the SLAMS required by 40 CFR 58.10 for each pollutant except PM. For PM, calculate and report the AQI on days for which you have measured air quality data (e.g., from continuous PM
12. * * *
i. * * *
a. Identify the highest concentration among all of the monitors within each reporting area and truncate as follows:
d. * * *
The EPA has developed a computer program to calculate the AQI for you. The program prompts for inputs, and it displays all the pertinent information for the AQI (the index value, color, category, sensitive group, health effects, and cautionary language). The EPA has also prepared a brochure on the AQI that explains the index in detail (The Air Quality Index), Reporting Guidance (Technical Assistance Document for the Reporting of Daily Air Quality-the Air Quality Index (AQI)) that provides associated health effects and cautionary statements, and Forecasting Guidance (Guideline for Developing an Ozone Forecasting Program) that explains the steps necessary to start an air pollution forecasting program. You can download the program and the guidance documents at
Bureau of Consumer Financial Protection.
Final rule.
The Dodd-Frank Wall Street Reform and Consumer Protection Act requires the Bureau of Consumer Financial Protection (Bureau) to prescribe rules establishing procedures for the conduct of adjudication proceedings. On July 28, 2011, the Bureau published an interim final rule establishing these procedures with a request for comment. This final rule responds to the comments received by the Bureau and amends the Bureau's regulations accordingly.
This final rule is effective on June 29, 2012.
John R. Coleman, Office of the General Counsel, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552, (202) 435-5724.
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) was signed into law on July 21, 2010. Title X of the Dodd-Frank Act established the Bureau to regulate the offering and provision of consumer financial products or services under the Federal consumer financial laws. On July 28, 2011, the Bureau promulgated its Rules of Practice Governing Adjudication Proceedings (Interim Final Rule), pursuant to section 1053(e) of the Dodd-Frank Act, 12 U.S.C. 5563(e). The Bureau promulgated the Interim Final Rule with a request for comment at 76 FR 45338. The comment period on the Interim Final Rule ended on September 26, 2011. After reviewing and considering the issues raised by the comments, the Bureau is now promulgating, in final form, its Rules of Practice Governing Adjudication Proceedings (Final Rule) establishing procedures for the conduct of adjudication proceedings conducted pursuant to section 1053 of the Dodd-Frank Act. 12 U.S.C. 5563.
Section 1053 of the Dodd-Frank Act authorizes the Bureau to conduct administrative adjudications to ensure or enforce compliance with (a) the provisions of Title X of the Dodd-Frank Act, (b) the rules prescribed by the Bureau under Title X of the Dodd-Frank Act, and (c) any other Federal law or regulation that the Bureau is authorized to enforce. 12 U.S.C. 5563(a). The Final Rule does not apply to proceedings governing the issuance of a temporary order to cease and desist pursuant to section 1053(c) of the Dodd-Frank Act. 12 U.S.C. 5563(c). As discussed in greater detail below, the Bureau currently intends to address such proceedings in a future rulemaking.
Like the Interim Final Rule, the Final Rule is modeled on the uniform rules and procedures for administrative hearings adopted by the prudential regulators pursuant to section 916 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 56 FR 38024 (Aug. 9, 1991) (Uniform Rules);
In drafting the Final Rule, the Bureau endeavored to create an adjudicatory process that provides for the expeditious resolution of claims while ensuring that parties who appear before the Bureau receive a fair hearing. Notably, in the last several decades, both the SEC and the FTC revised their rules of practice relating to administrative proceedings to make the adjudicatory process more efficient. In 1990, the SEC created a task force “to review the rules and procedures relating to [SEC] administrative proceedings, to identify sources of delay in those proceedings and to recommend steps to make the adjudicatory process more efficient and effective.” 60 FR 32738 (June 23, 1995). The result was a comprehensive revision of the SEC Rules in 1995.
In drafting the Final Rule, the Bureau considered and attempted to improve upon these and other agencies' efforts to streamline their processes while protecting parties' rights to fair and impartial proceedings. The following discussion outlines some significant aspects of the Final Rule.
Like the Interim Final Rule, the Final Rule adopts a decision-making procedure that incorporates elements of the SEC Rules, the FTC Rules, and the Uniform Rules. The Final Rule implements a procedure, like that in the Uniform Rules, whereby a hearing officer will issue a recommended decision in each administrative adjudication. Like the FTC Rules, the Final Rule provides any party the right to contest the recommended decision by filing a notice of appeal and perfecting the appeal by later filing an opening brief. In the event a party fails to timely file a notice of appeal or perfect an appeal, the Director may either adopt the recommended decision as the Bureau's final decision or order further briefing with respect to any findings of fact or conclusions of law contained in the recommended decision. The Bureau believes this approach best balances the need for expeditious decision-making with the parties' right to ultimate consideration of a matter by the Director.
In keeping with this approach, the Final Rule also provides that the hearing officer will decide dispositive motions in the first instance, subject to the same right of review provided for recommended decisions in the event that the ruling upon such a motion disposes of the case. Again, the Bureau has adopted this model because it provides for the most expeditious resolution of matters while preserving all parties' rights to review by the Director.
The Final Rule sets deadlines for both the recommended decision of the hearing officer and the final decision of the Director. The Bureau has adopted an approach, similar to that used by the SEC, wherein the hearing officer is
The section of the Final Rule governing the timing of the Director's decision on appeal or review is consistent with the language of section 1053 of the Dodd-Frank Act. If a recommended decision is appealed to the Director, or the Director orders additional briefing regarding the recommended decision, the Final Rule provides that the Office of Administrative Adjudication must notify the parties that the case has been submitted for final Bureau decision at the expiration of the time permitted for filing reply briefs with the Director. The Director then must issue his or her final decision within 90 days.
The Bureau has adopted the SEC's affirmative disclosure approach to fact discovery in administrative adjudications.
The goal in adopting the SEC's basic approach is to ensure that respondents have prompt access to the non-privileged documents underlying enforcement counsel's decision to commence enforcement proceedings, while eliminating much of the expense and delay often associated with pre-trial discovery in civil matters. Recognizing that administrative adjudications will take place after a Bureau investigation intended to gather relevant evidence, and in light of the affirmative obligation that the Final Rule places on enforcement counsel to provide access to materials gathered in the course of the investigation, the Final Rule does not provide for certain other traditional forms of pre-trial discovery, such as interrogatories and discovery depositions. The Final Rule does provide for the deposition of witnesses unavailable for trial, the use of subpoenas to compel the production of documentary or tangible evidence, and in appropriate cases, expert discovery, thus ensuring that respondents have an adequate opportunity to marshal evidence in support of their defense. The Bureau believes this approach will promote the fair and speedy resolution of claims while ensuring that parties have access to the information necessary to prepare a defense.
In response to the Interim Final Rule, the Bureau received seven comment letters. Four letters were received from trade associations representing sectors of the financial industry, one letter was received from a mortgage company, and two letters were received from individual consumers.
Trade associations' comments generally fell into several categories. Several comments suggested that the Bureau revisit the deadlines contained in the Interim Final Rule. Two trade association comment letters objected to the affirmative disclosure approach to discovery, and requested that the Bureau allow respondents to conduct additional forms of traditional civil discovery. Two trade associations requested that the Bureau adopt a process to notify potential respondents that the Bureau is contemplating an enforcement action, similar to the Wells Notice process used by the SEC. One trade association commenter expressed concern about the confidentiality of adjudication proceedings and filings. Trade associations made other specific comments as well, all of which are addressed in part V below in connection with the section of the Interim Final Rule to which they pertain.
The comment letter received from the mortgage company related to the Rules Relating to Investigations,
The comment letters from consumers did not contain any specific comments or suggestions pertaining to the Interim Final Rule.
In part IV of this preamble, the Bureau addresses general comments that were not directly related to particular sections of the Interim Final Rule. In part V, the Bureau describes each section of the Interim Final Rule, responds to significant issues raised by the comments pertaining to each section, and explains any changes made to the Interim Final Rule that are reflected in the Final Rule. Many sections of the Interim Final Rule received no comment and, as noted, are being finalized without change.
The Bureau received several comments that were not directed at specific sections of the Interim Final Rule. Those comments are addressed here.
Two commenters suggested that the Bureau adopt a process for a prospective respondent to be given the opportunity to respond to the Bureau's allegations before an action is filed or a notice of charges is issued, similar to the Wells Process adopted by the SEC.
The Bureau announced on November 7, 2011 that it has adopted a process similar to the Wells Process.
The Bureau received several comments raising concern about the disclosure of confidential material contained in administrative filings.
The Final Rule provides that filings containing confidential information subject to a protective order or a pending motion for a protective order may not be published or otherwise disclosed. In addition, the Bureau will adopt a policy providing for a ten-day delay before publishing filings, in order to allow any party an opportunity to object to the disclosure of allegedly confidential information contained within such filings. This policy is intended to protect confidential information from inadvertent disclosure in public documents. The comments regarding the Bureau's treatment of confidential information are addressed in more detail below in connection with the specific rules to which they were directed.
One commenter asked the Bureau to identify the official authorized to initiate enforcement proceedings in the absence of a Bureau Director. This commenter also suggested that once a Director is in place, only the Director should be authorized to initiate enforcement proceedings.
The President appointed a Director to the Bureau on January 4, 2012. The Director, or any official to whom the Director has delegated his authority pursuant to section 1012 of the Dodd-Frank Act, 12 U.S.C. 5492(b), will authorize the initiation of enforcement proceedings through the issuance of a notice of charges.
One commenter asserted that section 1052(c)(1) of the Dodd-Frank Act prohibits the Bureau from issuing civil investigative demands after the institution of any proceedings under a Federal consumer financial law, including proceedings initiated by a State or a private party. 12 U.S.C. 5562(c)(1). The commenter argued that a civil investigative demand should be accompanied by a certification that the demand will have no bearing on any proceeding then in process.
Section 1052(c)(1) provides, in relevant part, that “the Bureau may, before the institution of any proceedings under the Federal consumer financial law, issue in writing, and cause to be served upon such person, a civil investigative demand.” The language “before the institution of any proceeding under Federal consumer financial law” refers to the institution of proceedings by the Bureau related to the investigation that results in the proceeding. It does not limit the Bureau's authority to issue civil investigative demands based upon the commencement of a proceeding by other parties, such as a State or a private party. Nor does it limit the Bureau's authority to issue civil investigative demands to investigate potential violations of Federal consumer law not at issue in a pending proceeding.
In addition, the Bureau notes that any limitations placed upon it by section 1052(c)(1) of the Dodd-Frank Act are incorporated in 12 CFR 1080.6, which provides that civil investigative demands will be issued in accordance with section 1052(c) of the Dodd-Frank Act, 12 U.S.C. 5562(c).
One commenter argued the Right to Financial Privacy Act (RFPA), 12 U.S.C. 3401
As noted above, the President appointed a Director to the Bureau on January 4, 2012. The Bureau will comply with RFPA, but the commenters' particular concern about the sharing of information with the Secretary of the Treasury is moot.
This section of the Interim Final Rule sets forth the scope of the Interim Final Rule and states that it applies to adjudication proceedings brought under section 1053 of the Dodd-Frank Act. The Interim Final Rule does not apply to Bureau investigations, rulemakings, or other proceedings. As drafted and pursuant to the definition of the term “
The Bureau invited comments as to whether special rules governing such proceedings are necessary and, if so, what the rules should provide. One commenter recommended that the Bureau undertake a new rulemaking to promulgate rules governing temporary cease-and-desist proceedings initiated pursuant to section 1053(c) of the Dodd-Frank Act and suggested that such proceedings should be based on findings made on specific criteria. The commenter pointed to the Federal Deposit Insurance Corporation's rules governing temporary cease-and-desist proceedings, 12 CFR 308.131, as an example of such rules.
The Bureau agrees that there should be specific rules governing temporary cease-and-desist proceedings initiated pursuant to section 1053(c) of the Dodd-Frank Act, and currently intends to issue separate rules governing such proceedings.
One commenter also sought clarification as to whether the Interim Final Rule was intended to apply to proceedings in which the Bureau is seeking civil money penalties available under section 1055(c) of the Dodd-Frank Act. 12 U.S.C. 5565(c). The commenter noted that in many instances, the Bureau is likely to seek both an order to cease-and-desist and a civil money penalty based on the same facts. The commenter stated it would be more efficient to have both hearings combined into one hearing on the record.
To provide further guidance to covered persons, the Bureau clarifies that it will rely on the Final Rule when seeking civil money penalties in adjudication proceedings. The Bureau agrees with the commenter that there will be many instances where the Bureau will simultaneously seek civil money penalties, a cease-and-desist order, and potentially other available remedies. The Bureau will periodically be reviewing its experience under the Final Rule to consider whether additional changes may be warranted, including whether additional rules governing the imposition of civil money penalties pursuant to section 1055(c) of the Dodd-Frank Act would be beneficial.
With the exception of a technical change in the citation to the Dodd-Frank Act, the Bureau adopts § 1081.100 of the Interim Final Rule without change in the Final Rule.
This section of the Interim Final Rule, which is modeled on the FTC Rules, 16 CFR 3.1, sets forth the Bureau's policy
One commenter noted its strong support for fair and impartial adjudication proceedings, but indicated that whether such proceedings should also be “expeditious” depends on the meaning of that term, and on the facts and circumstances of individual cases. The Bureau notes that expeditious proceedings are contemplated under section 1053(b) of the Dodd-Frank Act, 12 U.S.C. 5563(b), which requires that the hearing be held no earlier than 30 days nor later than 60 days after the date of service of the notice of charges, unless an earlier or later date is set by the Bureau at the request of any party so served. The Bureau believes that, in drafting the Interim Final Rule, it created a process that simultaneously provides for the prompt and efficient resolution of claims and ensures that parties who appear before the Bureau receive a fair hearing.
The Bureau adopts § 1081.101 of the Interim Final Rule without change in the Final Rule.
This section of the Interim Final Rule, drawn from the Uniform Rules, 12 CFR 19.2, makes clear that the use of any term in the Interim Final Rule includes either its singular or plural form, as appropriate, and that the use of the masculine, feminine, or neuter gender shall, if appropriate, be read to encompass all three. This section also explicitly states that, unless otherwise indicated, any action required to be taken by a party to a proceeding may be taken by the party's counsel. Finally, this section to the Final Rule provides that terms not otherwise defined by § 1081.103 should be defined in accordance with section 1002 of the Dodd-Frank Act, 12 U.S.C. 5481; the Interim Final Rule did not specifically reference section 1002.
The Bureau adopts § 1081.102 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule sets forth definitions of certain terms used in the Interim Final Rule.
This section defines “
The Bureau intends for the term “
On its own initiative, the Bureau replaced the defined term “
On its own initiative, the Bureau has included a new definition in the Final Rule for the “
On its own initiative, the Bureau also amended the definitions of “
Finally, the Bureau changed the term “
The Bureau adopts § 1081.103 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule enumerates powers granted to the hearing officer subsequent to appointment. The hearing officer has the powers specifically enumerated in paragraph (b) of this section, as well as the power to take any other action necessary and appropriate to discharge the duties of a presiding officer. All powers granted by this provision are intended to further the Bureau's goal of an expeditious, fair, and impartial hearing process. The powers set forth in this section are generally drawn from the Administrative Procedure Act (APA), 5 U.S.C. 556, 557, and are similar to the powers granted to hearing officers and administrative law judges under the Uniform Rules, the SEC Rules, and the FTC Rules.
This section provides the hearing officer with the explicit authority to issue sanctions against parties or their counsel as may be necessary to deter sanctionable conduct, provided that any person to be sanctioned first has an opportunity to show cause as to why no sanction should issue. The Bureau believes such authority is included within the hearing officer's authority to regulate the course of the hearing, 5 U.S.C. 556(c)(5), but considers it appropriate to explicitly authorize the exercise of such authority in the Final Rule. The Bureau notes that the MARs provide adjudicators with the authority “to impose appropriate sanctions against any party or person failing to obey her/his order, refusing to adhere to reasonable standards of orderly and ethical conduct, or refusing to act in good faith.”
One commenter recommended that this section be revised to make clear that the hearing officer has the authority to provide a person requesting confidential treatment of information the time to come into compliance with applicable requirements before making a determination regarding confidentiality. The commenter expressed concern that the section as drafted authorized the hearing officer to immediately make public purportedly confidential material if the applicable requirements were not met.
The Bureau believes that the section as drafted adequately addresses this
The section permits the hearing officer to deny confidential status without prejudice until a party complies with “all relevant rules.” The commenter stated that the reference to “all relevant rules” is vague because the adjudication proceeding could be based on a respondent's alleged noncompliance with other rules. The commenter questioned whether the respondent would have to comply with those other rules before the hearing officer will treat material as confidential for the purposes of the adjudication proceeding.
The Bureau does not anticipate that the hearing officer will confuse the substantive rules the respondent is alleged to have violated with the procedural rules governing the treatment of purportedly confidential material. In light of this comment, however, and in the interest of providing covered persons additional guidance, the Bureau directs parties to §§ 1081.111, 1081.112, and 1081.119, as well as any applicable orders of the Director or hearing officer and any guidance issued by the Office of Administrative Adjudication, as the relevant rules with which persons seeking confidential treatment of material must comply.
Finally, the commenter stated that the hearing officer's authority to “reject written submissions that fail to comply with the requirements of this part, and to deny confidential status to documents and testimony without prejudice until a party complies with all relevant rules” was unclear. The commenter suggested that the hearing officer should only be permitted to reject filings that “materially” fail to comply with applicable requirements, so as not to elevate form over substance.
The Bureau has revised the Interim Final Rule to address this comment. Rejection of submissions merely because they fail to comply with this part in an immaterial fashion would be inconsistent with the Bureau's policy of encouraging fair and expeditious proceedings. Accordingly, the Bureau has revised § 1081.104(b)(6). The Final Rule provides that the hearing officer has the authority to “reject written submissions that materially fail to comply with the requirements of this part.” The Bureau adopts § 1081.104 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule is modeled on the FTC and the SEC Rules setting forth the process for assigning hearing officers in the event that more than one hearing officer is available to the Bureau.
No comments were received specifically relating to this section, but commenters strongly supported a policy that adjudications should be fair and impartial. To that end, the Bureau has amended § 1081.201 of the Interim Final Rule by adding a new paragraph (e), which will require respondents, nongovernmental amici, and nongovernmental intervenors under § 1081.119(a) to file a disclosure statement and notification of financial interest. This disclosure statement and notification, discussed in more detail below, will provide the hearing officer and the parties with information to determine actual or potential bases for financial disqualification of the hearing officer early in the proceeding.
The Bureau adopts § 1081.105 of the Interim Final Rule without change in the Final Rule.
This section of the Interim Final Rule provides that deadlines for action by the hearing officer established by the Interim Final Rule do not confer any substantive rights on respondents. The SEC Rules, 17 CFR 201.360(a)(2), contain similar language regarding the timelines set out for certain hearing officer actions in SEC proceedings.
The Bureau received no comment on § 1081.106 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule is largely based on the Uniform Rules, 12 CFR 19.6, and prescribes who may act in a representative capacity for parties in adjudication proceedings. A notice of appearance is required to be filed by an individual representing any party, including an individual representing the Bureau, simultaneously with or before the submission of papers or other act of representation on behalf of a party. Any counsel filing a notice of appearance is deemed to represent that he or she agrees and is authorized to accept service on behalf of the represented party. The section also sets forth the standards of conduct expected of attorneys and others practicing before the Bureau. It provides that counsel may be excluded or suspended from proceedings, or disbarred from practicing before the Bureau, for engaging in sanctionable conduct during any phase of the adjudication proceeding.
The Bureau received no comments on § 1081.107, and the Final Rule is substantially similar to the Interim Final Rule. On the Bureau's own initiative, however, the Bureau amended § 1081.107(a)(1) to clarify that an attorney who is currently suspended or debarred from practicing in any jurisdiction may not appear before the Bureau or a hearing officer. This clarification is consistent with the SEC Rules, 17 CFR 201.102(e)(2), which provide for the suspension of any attorney who has been suspended or debarred by a court of the United States or of any State, and is designed to prohibit the appearance before the Bureau by a person who is authorized to practice in one State, but has been debarred or suspended in another jurisdiction.
The Bureau adopts § 1081.107 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule is based on the Uniform Rules, 12 CFR 19.7, and requires that all filings and submissions be signed by at least one counsel of record, or the party if appearing on his or her own behalf. This section provides that, by signing a filing or submission, the counsel or party certifies and attests that the document has been read by the signer, and, to the best of his or her knowledge, is well grounded in fact and is supported by existing law or a good faith argument for the extension or modification of the existing law. In addition, the certification attests that the filing or submission is not for purposes of unnecessary delay or any improper purpose. Oral motions or arguments are also subject to the good faith certification: The act of making the oral motion or argument constitutes the required certification. Finally, this section makes clear that a violation of the good faith certification requirement would be grounds for sanctions under § 1081.104(b)(13). This section, which also mirrors the requirements of Federal Rule of Civil Procedure 11, is intended to ensure that parties and their counsel do not abuse the administrative process by making filings that are factually or legally unfounded or intended simply to delay or obstruct the proceeding.
The Bureau received no comment on § 1081.108 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule provides that, in general, conflicts of interest in representing parties to adjudication proceedings are prohibited. The hearing officer is empowered to take corrective steps to eliminate such conflicts. If counsel represents more than one party to a proceeding, counsel is required to file at the time he or she files his or her notice of appearance a certification that: (1) The potential for possible conflicts of interest has been fully discussed with each such party; and (2) the parties individually waive any right to assert any conflicts of interest during the proceeding. This approach is modeled after the Uniform Rules, 12 CFR 19.8, which were based upon the Model Code of Conduct for attorneys and the District of Columbia Ethics Rule.
The Bureau received no comment on § 1081.109 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule implements the APA's prohibition on ex parte communications.
Consistent with the MARs and the practice of other agencies, communications regarding the status of the proceeding are expressly excluded from the definition of ex parte communications.
Finally, paragraph (e) of this section provides that the hearing officer is not permitted to consult an interested person or a party on any matter relevant to the merits of the adjudication, except to the extent required for the disposition of ex parte matters. Consistent with 5 U.S.C. 554(d), this paragraph also provides that Bureau employees engaged in an investigational or prosecutorial function, other than the Director, may not participate in the decision-making function in the same or a factually related matter.
The Bureau received several comments regarding this section. One commenter expressed the concern that it may be difficult to determine whether a notice of charges “will be” or is “likely to be” issued for the purpose of determining when the prohibition on ex parte communications begins. The commentator stated that, because an individual makes the final decision to issue a notice of charges and the individual's thinking could change unexpectedly, anything short of respondent's actual knowledge that a notice of charges has actually been issued should be insufficient to begin the prohibition on ex parte communications. The commentator stated that it would not be appropriate to sanction someone for an ex parte communication when the person does not know whether a notice of charges has been issued. The commenter proposed that the Bureau revise this section of the Interim Final Rule to begin the ban on ex parte communications upon notice of actual issuance and service of a notice of charges, regardless of whether the person has knowledge that a notice of charges will be issued. Similarly, in cases in which a court has vacated a final decision and order and remanded a matter for further adjudication proceedings, the commenter proposed that this section of the Interim Final Rule be revised to prohibit ex parte communications after remand beginning when the party actually knows the Bureau will not file an appeal because the time for filing an appeal has lapsed and the party has not been served with a notice of appeal.
The Bureau has revised the section after considering these comments. The APA provides that the prohibition on ex parte communications “shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.” 5 U.S.C. 557(d)(1)(E). The APA does not, however, prohibit ex parte communications from the time a party knows a proceeding “is likely to be” issued. Accordingly, the Bureau has struck the phrase “is likely to be” from § 1081.110(a)(3).
The Bureau has also revised § 1081.110(a)(3) with respect to the timing of the respondent's knowledge of whether the Bureau will file an appeal. The Final Rule removes that provision of the Interim Final Rule stating that “an order of remand by a court of competent jurisdiction shall be deemed to become effective when the Bureau determines not to file an appeal or a petition for a writ of certiorari,” and slightly revises the rest of the section to reflect the fact that review of an appellate court's decision may only be had upon the grant of a petition for rehearing by the
Finally, paragraph (e) provides that Bureau employees engaged in an investigational or prosecutorial function, other than the Director, may not participate in the decision-making function in the same or a factually related matter. The commenter expressed concern that this section would permit the Director to engage in ex parte communications with Bureau enforcement counsel regarding the decision, recommended decision, or agency review of the recommended decision in the same or factually related case. The commenter therefore recommended that this section be revised to prohibit enforcement counsel from communicating with the Director under these circumstances.
The Bureau notes that, while this section of the Interim Final Rule does not bar enforcement counsel from communicating with the Director regarding matters unrelated to the Director's adjudicatory functions, this section expressly prohibits enforcement counsel from participating or advising in the decision, recommended decision, or agency review of the recommended decision, except as witness or counsel in a public proceeding. The Bureau believes that these prohibitions are consistent with the separation of functions provision of the APA, 5 U.S.C. 554(d), and address the commenter's concern. Accordingly, the Bureau declines to revise paragraph (e).
The Bureau adopts § 1081.110 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule requires the filing of papers in an adjudication proceeding. It specifies the papers that must be filed and addresses the time and manner of filing. The Bureau received no comments regarding this section. In the interest of clarity and to provide further guidance to parties, however, the Bureau has amended the Interim Final Rule in several respects.
First, the Final Rule makes technical revisions to paragraph (a) to require the filing of the disclosure statement and notification of financial interest required under the new § 1081.201(e). The Final Rule also includes a slight revision to paragraph (a) intended to clarify that the Bureau must file the proof of service of the notice of charges. Among other things, the filing of the proof of service will provide notice of the beginning of the ten-day period after which the Bureau will publish the notice of charges under § 1081.200(c).
The Final Rule makes non-substantive changes to paragraph (b) of the Interim Final Rule to make uniform the references to the United States Postal Service and the different mail services. The Bureau also revised paragraph (b) to reflect the transfer of certain authorities to the newly-created Office of Administrative Adjudication. As a result, the section provides for filing by electronic transmission upon the conditions specified by the Office of Administrative Adjudication, recognizing that while the Bureau anticipates the development of an electronic filing system, it may adopt other means of electronic filing in the interim (
Finally, the Bureau added a new paragraph (c), providing that unless otherwise ordered by the Bureau or the hearing officer, or in the absence of a pending motion seeking such an order, all papers filed in connection with an adjudication proceeding are presumed to be open to the public. This paragraph is consistent with the Bureau's commitment to making adjudication proceedings as transparent as reasonably possible, as reflected in §§ 1081.119(c) and 1081.300, which both recognize a presumption that documents and testimony in adjudication hearings are public.
The Bureau adopts § 1081.111 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule sets forth the formal requirements for papers filed in adjudication proceedings. It sets forth formatting requirements, requires that all documents be signed in accordance with § 1081.108, and requires the redaction of sensitive personal information from filings where the filing party determines that such information is not relevant or otherwise necessary for the conduct of the proceeding. This section also sets forth the method of filing documents containing information for which confidential treatment has been granted or is sought, and requires that in addition to filing the confidential information under seal, an expurgated copy of the filing be made on the public record. Section 1081.119 governs the filing of motions seeking confidential treatment of information and sets forth the standard to be applied by the hearing officer in determining whether to grant such treatment.
One commenter suggested that the Bureau remove the requirement in paragraph (e) that sensitive personal information be redacted from filings. The commenter believed that this requirement was not workable because the Interim Final Rule did not define “sensitive personal information” and only provided examples of such information. The commenter also pointed out that the Uniform Rules and the SEC Rules do not require the redaction of sensitive personal information.
The Bureau declines to omit the requirement that sensitive personal information be redacted from filings. The Bureau continues to believe that it is improper to file Social Security numbers, financial account numbers, and other sensitive personal information in an adjudication proceeding where the information is not relevant or otherwise necessary for the conduct of the proceeding. The Bureau notes that this section is modeled on the FTC Rules, 16 CFR 3.45(b), and is also similar to Federal Rule of Civil Procedure 5.2, which require filers to redact certain personal information, including Social Security numbers and financial account numbers, from filings. The Bureau agrees, however, that the term “sensitive personal information” should be defined and has therefore revised paragraph (e) to define that term.
The commenter also recommended the removal of paragraph (f)(2), which requires a party seeking confidential treatment of information in a filing to file an expurgated copy of the filing with the allegedly confidential material redacted. Specifically, the commenter stated that paragraph (f)(2)'s requirement that the redacted version show the size and location of the redactions could, in effect, disclose what was redacted and may be impractical when redactions are made electronically. The commenter stated that the SEC Rules and Uniform Rules do not include this requirement. The Bureau notes that paragraph (f)(2) is modeled on the FTC Rules, 16 CFR 3.45(e), and that the commenter did not identify how this redaction requirement could disclose confidential information or would be impractical. Accordingly, the Bureau declines to omit this requirement.
Section 1081.112(e) has been revised to include a definition of sensitive personal information, and to clarify the
The Bureau adopts § 1081.112 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule requires that every paper filed in a proceeding be served on all other parties to the proceeding in the manner set forth in this section. Service by electronic transmission is encouraged, but is conditioned upon the consent of the parties. The section also sets forth specific methods for the Bureau to serve notices of charges, as well as recommended decisions and final orders. In this regard, the section provides that such service cannot be made by First Class mail, but also provides that service may be made on authorized agents for service of process.
The section also provides that the Bureau may serve persons at the most recent business address provided to the Bureau in connection with a person's registration with the Bureau. Although no such registration requirements currently exist, the Bureau has included this provision to account for any such requirements in the future. In the event that a party is required to register with the Bureau and maintain the accuracy of such registration information, the Bureau should be entitled to rely upon such information for service of process. This provision is modeled on the SEC Rules, 17 CFR 201.141(a)(2)(iii).
The Bureau did not receive comments specifically related to § 1081.113. However, the Bureau made technical revisions to clarify and make this section of the Final Rule consistent with other sections of the Final Rule. The Bureau revised paragraph (d)(1)(v), which requires the Bureau to maintain a record of service of the notice of charges on parties, to also require the Bureau to file the certificate of service consistent with revised § 1081.111(a) to give notice of the beginning of the ten-day period after which the Bureau will publish the notice of charges under § 1081.200(c).
In addition, the Bureau revised paragraph (a) of this section to make it clear that the parties must comply with any applicable order of the hearing officer or the Director governing the service of papers.
Finally, as it did with § 1081.111(b), the Bureau made non-substantive changes to paragraphs (c) and (d) to make uniform the references to the United States Postal Service and the different mail services.
The Bureau adopts § 1081.113 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule provides for the manner of computing time limits, taking into account the effect of weekends and holidays on time periods that are ten days or less. This section also sets forth when filing or service is effective. With regard to time limits for responsive pleadings or papers, this section incorporates a three-day extension for mail service, similar to the Federal Rules of Civil Procedure, and a one-day extension for overnight delivery, as contained in some agencies' existing rules. A one-day extension for service by electronic transmission is consistent with the Uniform Rules and reflects that electronic transmission may result in delays in actual receipt by the person served.
Although the Bureau did not receive comments specifically related to § 1081.114, the Bureau made technical, non-substantive revisions to this section. As it did with §§ 1081.111 and 1081.113, the Bureau made non-substantive changes to make uniform the references to the United States Postal Service and the different mail services.
The Bureau adopts § 1081.114 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule is modeled on the SEC Rules, 17 CFR 201.161, and is intended to limit extensions of time to those necessary to prevent substantial prejudice. The section is intended to further the Bureau's goal of ensuring the timely conclusion of adjudication proceedings. The section generally provides the hearing officer and the Director the authority to extend the time limits prescribed by the Interim Final Rule in certain defined circumstances. In keeping with the goal of expeditious resolution of proceedings, this section provides that motions for extension of time are strongly disfavored and may only be granted after consideration of various enumerated factors, provided that the requesting party makes a strong showing that denial of the motion would substantially prejudice its case. The section also provides that any extension of time shall not exceed 21 days unless the hearing officer or Director, as appropriate, states on the record or in a written order the reasons why a longer extension of time is necessary. Finally, the section provides that the granting of a motion for an extension of time does not affect the deadline for the recommended decision of the hearing officer, which must be filed no later than the earlier of 300 days after the filing of the notice or charges or 90 days after the end of post-hearing briefing (unless separately extended by the Director as provided for in § 1081.400).
Commenters expressed concern over paragraph (b) of this section, which sets forth a policy strongly disfavoring motions for extensions of time. The commenters recommended that the Bureau delete paragraph (b).
The Bureau believes the policy reflected in paragraph (b) ensures fairness to both the parties and the hearing officer by allowing an administrative matter to proceed within the timeframes provided by the Interim Final Rule, which were designed to provide sufficient time to both the litigants and the hearing officer. The Bureau believes that mandatory deadlines for the completion of certain stages of administrative proceedings, and a policy strongly disfavoring extensions, postponements or adjournments, is necessary to ensure that these proceedings are expeditious and fair.
The Bureau notes that the SEC amended its rules in 2003 to improve the timeliness of its administrative proceedings. The SEC Rules, 17 CFR 201.161, on which this section is modeled, were revised in 2003 to incorporate a policy strongly disfavoring extensions, postponements or adjournments except in circumstances where the requesting party makes a strong showing that the denial of the request or motion would substantially prejudice its case. The SEC stated that this provision was necessary in light of another amendment to the SEC Rules that changed the suggested guidelines for completion of administrative matters to mandatory deadlines.
The Bureau adopts § 1081.115 of the Interim Final Rule without change in the Final Rule.
This section of the Interim Final Rule provides that fees and expenses for non-party witnesses subpoenaed pursuant to
The Bureau received no comment on § 1081.116 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule, which is modeled on the Uniform Rules, 12 CFR 19.16, states that nothing contained in the Interim Final Rule shall be construed to limit the right of the Bureau to conduct examinations or visitations of any person, or the right of the Bureau to conduct any form of investigation authorized by law, or to take other actions the Bureau is authorized to take outside the context of conducting adjudication proceedings. This section is intended to clarify that the pendency of an adjudication proceeding with respect to a person shall not affect the Bureau's authority to exercise any of its powers with respect to that person.
One commenter asserted that section 1052(c)(1) of the Dodd-Frank Act prohibits the Bureau from issuing civil investigative demands after the institution of any proceedings under Federal consumer financial law, including proceedings initiated by a State law enforcement agency or a private party. The commenter asked the Bureau to amend the Interim Final Rule to require every civil investigative demand to be accompanied by a certification that the demand will have no bearing on any proceeding then in process.
This comment arguably should have been directed to the Rules of Investigation, 12 CFR part 1080, but the Bureau addresses it here. The Bureau notes that this section of the Interim Final Rule did not purport to implement or interpret section 1052(c)(1) of the Dodd-Frank Act. Rather, it states that nothing within “this part” (
The Bureau adopts § 1081.117 of the Interim Final Rule without change in the Final Rule.
This section of the Interim Final Rule, which is modeled on the Uniform Rules, 12 CFR 19.17, is intended to preclude the use of collateral attacks to circumvent or delay the administrative process.
The Bureau received no comment on § 1081.118 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule sets forth the means by which a party or another person may seek a protective order shielding confidential information. While generally modeled on the SEC Rules, 17 CFR 201.322, this section of the Interim Final Rule adopts the substantive standard set forth in the FTC Rules, 16 CFR 3.45(b), which provides that the hearing officer may grant a protective order only upon a finding that public disclosure will likely result in a clearly defined, serious injury to the person requesting confidential treatment, or after finding that the material constitutes sensitive personal information. The Bureau adopted the FTC's standard in order to provide as much transparency in the adjudicative process as possible, while also protecting confidential business information or other sensitive information of parties appearing before the Bureau or third parties whose information may be introduced into evidence. The Bureau expects that the standard set forth in this section will be met in cases where the disclosure of trade secrets or other information to the public or to parties is likely to result in harm, but that the standard will not be met simply because the information at issue is deemed “confidential” or “proprietary” by the movant. To the extent that a movant can identify a clearly defined, serious injury likely to result from the disclosure of such particular information, it will be protected; generalized claims of competitive or other injury generally will not suffice. This section provides that documents subject to a motion for confidential treatment will be maintained under seal until the motion is decided.
One commenter expressed concern that the Interim Final Rule may not accommodate a situation where the person seeking confidential treatment is not the same as the person who would be harmed by the disclosure of the material. In order to clarify the rights of third parties whose confidential information may be disclosed during the adjudicative process, the Bureau added a new paragraph (a), providing that a party may not disclose confidential information obtained from a third party without providing the third party at least ten days notice prior to the disclosure. In response to this notice, the third party has the option to consent to the disclosure of such information, which may be conditioned on the entry of a protective order, or may intervene in the proceeding for the limited purpose of moving for a protective order pursuant to this section. The new paragraph (a) further provides that a party must certify that proper notice was provided for any written filing or oral motion or argument that contains confidential information obtained from a third party.
In order to streamline the process for disclosing confidential information obtained from third parties, the Bureau revised paragraph (b) of the Interim Final Rule (paragraph (c) of the Final Rule) to provide for the mandatory entry of a stipulated protective order that has been agreed to by all parties, including third parties to the extent their information is at issue. However, the Office of Enforcement reserves the right to refuse to stipulate to a protective order that does not meet the substantive standards set forth in this section.
One commenter recommended that the Bureau adopt the SEC's standard for granting a protective order and revise paragraph (b) of the Interim Final Rule to provide that a “motion for a protective order shall be granted only upon a finding that the harm resulting from disclosure would outweigh the benefits of disclosure.”
As noted above, the Bureau considered the SEC's standard, but ultimately decided to adopt the FTC's standard because it comports with the Bureau's goals of providing transparency in the adjudicative process while also protecting confidential business information or other sensitive information. The Bureau believes the standard it adopts in this section serves the public interest by balancing the need for a public understanding of the Bureau's adjudication proceedings with the interests of respondents in avoiding competitive injury from public disclosure of information.
The commenter raised a number of specific concerns regarding the Bureau's adoption of the FTC's standard. First, the commenter stated that the standard prevents a financial institution from seeking confidential treatment of its customers' personal information. However, the Interim Final Rule
The commenter also objected to this standard because it does not define the terms “serious injury,” “likely,” or “clearly defined.” The commenter identified the unpredictable possibility of identity theft as a possibility of injury that may not be “likely.” The Bureau believes that the commenter's concerns regarding potential identity theft should be addressed by § 1081.112(e), which generally requires the redaction of sensitive personal information. The Bureau reiterates that it anticipates that sensitive personal information of consumers will regularly be protected from public disclosure. The Bureau again notes that § 1081.112(e) is based on the FTC Rules, 16 CFR 3.45(b), and that the FTC has significant experience applying these standards in many types of cases. The Bureau believes leaving these terms undefined provides the hearing officer with the necessary flexibility to address confidentiality concerns on a case-by-case basis based on the relevant facts and circumstances. At the same time, this standard is consistent with the Bureau's goal of transparency and avoids granting confidential status based on unsupported and generalized claims of competitive or other injury.
The commenter also stated that the Interim Final Rule does not accommodate the possibility that the public disclosure of information may be illegal under laws unrelated to the adjudication proceeding. The Bureau agrees and has therefore revised paragraph (b) of this section (now paragraph (c)) to break up the bases for issuance of protective orders into subsections and to include a new subsection making clear that the hearing officer shall grant a protective order where public disclosure is prohibited by law.
Finally, consistent with the Bureau's commitment to transparency and open government, the Bureau clarified paragraph (b) of the Interim Rule (paragraph (c) of the Final Rule) to recognize that documents and testimony filed in connection with an adjudication proceeding are presumed to be public. This clarification is consistent with § 1081.300 and the revised § 1081.111(c), both of which recognize a presumption that documents, testimony, and hearings are public.
The Bureau adopts § 1081.119 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule is based on the SEC Rules, 17 CFR 201.240. The Bureau on its own initiative revised this section to make it consistent with § 1081.100 of this part regarding the scope of the Interim Final Rule. Section 1081.100 makes clear that the Interim Final Rule applies only to adjudication proceedings authorized by section 1053 of the Dodd-Frank Act and not to Bureau investigations, investigational hearings or other proceedings that do not arise from proceedings after the issuance of a notice of charges. As revised, this section governs only offers of settlement made after the institution of adjudication proceedings under this part. Under this section, any respondent in a proceeding may make an offer of settlement in writing at any time. Any settlement offer shall be presented to the Director with a recommendation, except that, if the recommendation is unfavorable, the offer shall not be presented to the Director unless the person making the offer so requests.
The section requires that each offer of settlement recite or incorporate as part of the offer the provisions of paragraphs (c)(3) and (4). Because certain facts necessary for the Director to make a reasoned judgment as to whether a particular settlement offer is in the public interest will often be available only to the Bureau employee that negotiated the proposed settlement, paragraph (c)(4)(i) requires waiver of any provisions, under the Interim Final Rule or otherwise, that may be construed to prohibit ex parte communications regarding the settlement offer between the Director and Bureau employee involved in litigating the proceeding. Paragraph (c)(4)(ii) requires waiver of any right to claim bias or prejudgment by the Director arising from the Director's consideration or discussions concerning settlement of all or any part of the proceeding. If the Director rejects the offer of settlement, the person making the offer shall be notified of the Director's action. The rejection of the offer of settlement shall not affect the continued validity of the waivers pursuant to paragraph (c)(4).
The Bureau also revised this section to include a new paragraph (d) governing the content of stipulations and consent orders and providing a process for resolving an adjudication proceeding through a consent order. This process requires the respondent and the Bureau to reduce the terms of any settlement into a written stipulation and consent order memorializing the terms of the settlement and including certain required provisions. The Bureau will then issue an order with the consent of the respondent.
The Bureau adopts § 1081.120 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule sets forth the Bureau's policy to cooperate with other governmental agencies to avoid unnecessary overlapping or duplication of regulatory functions.
The Bureau received no comment on § 1081.121 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule, similar to the comparable section of the Uniform Rules, 12 CFR 19.18, contains the requirements relating to the initiation of adjudication proceedings, including the required content of a notice of charges initiating a hearing. In provisions modeled on the MARs and the Federal Rules of Civil Procedure,
On its own initiative, the Bureau amended this section to include a new
The Bureau adopts § 1081.200 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule requires a respondent to file an answer in all cases. The Bureau considered, but rejected, the approach set forth in the SEC Rules, 17 CFR 201.220(a), whereby an answer is required only if specified in the notice of charges. The Bureau believes that an answer can help focus and narrow the matters at issue.
Pursuant to paragraph (a) of this section, respondents must file an answer within 14 days of service of the notice of charges. The 14-day time period is adopted from the FTC Rules, 16 CFR 3.12. Two commenters requested that paragraph (a) of this section be amended to provide 20 days from service of the notice of charges, rather than 14 days, to file an answer. One commenter stated that it takes a considerable amount of time to review the notice of charges, investigate the factual and legal allegations, determine the appropriate response, and draft an answer. That commenter also stated that more than 14 days will be necessary to prepare an answer because the Bureau is not required to provide affirmative disclosures pursuant to § 1081.206(d) until seven days after service of the notice of charges. Both commenters note that the Federal banking agencies and the SEC allow 20 days to file an answer. Finally, one commentator stated that the 14-day requirement may cause respondents to answer with repeated assertions that they lack information, leading to fewer stipulations, and undercutting the Bureau's goal of timely adjudications.
The Bureau declines to amend the Interim Final Rule as requested. The statutory requirement that a hearing be held between 30 to 60 days after the service of the notice of charges, unless an earlier date is set at the request of any party so served, necessitates a compressed timeline for litigating adjudication proceedings. The Bureau is not alone in setting a 14-day deadline for an answer. As noted above, the FTC requires respondents in administrative proceedings to file an answer within 14 days of service of the complaint.
Further, as noted above, the Bureau has adopted a policy pursuant to which it will generally provide advance notice of a possible enforcement action to prospective respondents before filing a notice of charges. Recipients of such notices will have an opportunity to submit a response in writing. As a result, many respondents will have considered and responded to most or all of the Bureau's allegations before receiving the notice of charges. The advance notice will also give respondents a prior opportunity to identify facts to which they may stipulate, addressing the expressed concern that a 14-day deadline to answer may lead to fewer factual stipulations.
Likewise, the Bureau is not persuaded that respondents need additional time to answer after receiving the Bureau's affirmative disclosure documents. In typical civil litigation, and in administrative proceedings before the prudential regulators and the FTC, respondents file an answer before conducting any discovery. The Bureau's affirmative disclosure obligation will be triggered before a respondent's answer is due. Thus, respondents will have access to more information prior to filing an answer than is available to most respondents in other civil and administrative proceedings.
Finally, pursuant to § 1081.115, a respondent may ask for an extension of time to file an answer. While such extensions are strongly disfavored, they may be granted if the respondent makes a strong showing that the denial of its motion for an extension of time would substantially prejudice its case. For all of these reasons, the Bureau declines to amend the deadline for filing an answer contained in paragraph (a) of § 1081.201 of the Interim Final Rule.
As in the Uniform Rules, 12 CFR 19.19(c), paragraph (d) of this section provides that failure to file a timely answer is deemed to be a waiver of the right to appear and a consent to the entry of an order granting the relief sought by the Bureau in the notice of charges. This section provides that in the case of default, the hearing officer is authorized, without further proceedings, to find the facts to be as alleged in the notice of charges and to enter a recommended decision containing appropriate findings and conclusions.
Paragraph (d)(2) of this section adopts the procedure from the SEC Rules for a motion to set aside a default, 17 CFR 201.155. It also provides that the hearing officer, prior to the filing of the recommended decision, or the Director, at any time, may set aside a default for good cause shown.
In the discussion of § 1081.105 above, the Bureau noted the addition of a new § 1081.201(e) requiring the filing of a disclosure statement and notification of financial interest. Consistent with the Bureau's goal of an expeditious, fair, and impartial hearing process, the Bureau seeks to provide the parties and the hearing officer with information to identify potential or actual bases for disqualification early in the process. Section 1081.201(e) is modeled on the disclosure statements required under Federal Rule of Civil Procedure 7.1, Federal Rule of Appellate Procedure 26.1, Third Circuit Local Appellate Rule 26.1.1, and Sixth Circuit Rule 26.1. This disclosure is calculated to reach a majority of the circumstances that are likely to call for disqualification on the basis of financial information that a hearing officer may not know or recollect; however, the disclosure does not cover all of the circumstances that may call for disqualification. In addition to requiring a respondent, a nongovernmental amicus, or a nongovernmental intervenor to identify any parent corporation or any publicly owned corporation owning 10% or more of its stock, § 1081.201(e) also requires the identification of “any publicly owned corporation not a party to the proceeding that has a financial interest in the outcome of the proceeding and the nature of that interest.” The types of financial interests that must be disclosed under this section include, for example, insurance, franchise, or indemnity agreements giving a publicly
The Bureau adopts § 1081.201 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule provides that a notice of charges or an answer may be amended or supplemented as a matter of course at any stage of the proceeding.
The Bureau did not receive comment on § 1081.202, but the Bureau has amended paragraph (a) of this section on its own initiative to require a party who wishes to amend a pleading to obtain the consent of the other party or leave of the hearing officer. By requiring written consent or leave of the hearing officer to amend pleadings, the revised section encourages parties to plead their case fully, as opposed to reserving claims and defenses for last minute amendments. This section continues to reflect a liberal standard of permitting amendments of pleadings, but implements an appropriate limit for amendments that are unduly prejudicial.
The Bureau adopts paragraph (b) of § 1081.202 of the Interim Final Rule without change. As a result, when a party seeks to introduce evidence at a hearing that is outside the scope of matters raised in the notice of charges or answer, the hearing officer may admit the evidence when admission is likely to assist in adjudicating the merits of the action unless the objecting party demonstrates that admission of such evidence would unfairly prejudice that party's action or defense upon the merits.
The Bureau adopts § 1081.202 of the Interim Final Rule with the changes discussed above.
Section 1081.203 of the Interim Final Rule sets forth the requirements related to scheduling conferences. Paragraph (a) of this section requires the parties to meet before the initial scheduling conference to discuss the nature and basis of their claims and defenses, the possibilities for a prompt settlement or resolution of the case, and other matters to be determined at the scheduling conference.
Paragraph (b) of § 1081.203 of the Interim Final Rule provides that within 20 days of the service of the notice of charges, or at another time if the parties agree, the hearing officer and the parties are to have a scheduling conference. The Bureau revised paragraph (b) to clarify that a scheduling conference is to be held, not just scheduled, within 20 days of service of the notice of charges. This clarification is intended to reflect the Bureau's original intent with respect to the timing of the scheduling conference.
Paragraph (b) of this section also sets forth the issues to be discussed at the scheduling conference. These issues are drawn from those the parties are required to discuss at scheduling and prehearing conferences under the Uniform Rules, 12 CFR 19.31, the SEC Rules, 17 CFR 201.221, and the FTC Rules, 16 CFR 3.21. Paragraph (b)(1) provides that the parties shall be prepared to address the determination of hearing dates and location, and whether, in proceedings under section 1053(b) of the Dodd-Frank Act, the hearing should commence later than 60 days after service of the notice of charges. This provision is intended to account for the requirement in section 1053(b) of the Dodd-Frank Act that the hearing be held no earlier than 30 days nor later than 60 days after the date of service of the notice of charges, unless an earlier or later date is set by the Bureau at the request of any party so served. It is expected that the parties will discuss a hearing date at the scheduling conference, and that this would afford respondents the opportunity to request a hearing date outside the 30-to-60 day timeframe.
It is also expected that at or before the scheduling conference, the parties will discuss any issues related to the production of documents pursuant to § 1081.206, any anticipated motions for witness statements pursuant to § 1081.207, whether either party intends to issue documentary subpoenas, and whether either party believes that depositions will be necessary to preserve the testimony of witnesses who will be unavailable for the hearing. The parties are also expected to discuss the need and a schedule for any expert discovery.
Pursuant to paragraph (d) of § 1081.203, the hearing officer is required to issue a scheduling order at or within five days of the conclusion of the scheduling hearing, setting forth the date and location of the hearing, as well as other procedural determinations made. It is expected that the hearing officer will establish any dates for expert discovery in the scheduling order, or else expressly find that such discovery is not necessary or reasonable in a particular case. This scheduling order will govern the course of the proceedings, unless later modified by the hearing officer.
Provision for a prompt scheduling conference followed by prompt issuance of a scheduling order is necessary in order to allow for the orderly course of proceedings on the timeline set forth elsewhere in the Interim Final Rule. Particularly in cases brought pursuant to section 1053(b) of the Dodd-Frank Act in which the respondent does not request a hearing date outside the 30-to-60 day timeframe set forth in the statute, it is essential that the hearing officer and the parties have a clear understanding of the applicable schedule at the earliest possible date.
As provided for in the SEC Rules, 17 CFR 201.221(f), paragraph (e) of this section provides that any person named as a respondent in a notice of charges who fails to appear at a scheduling conference may be deemed in default pursuant to § 1081.201(d)(1). Finally, like the FTC Rules, 16 CFR 3.21(g), this section provides that scheduling conferences are presumptively public unless the hearing officer determines otherwise based on the standard set forth in § 1081.119(c).
The Bureau received no comment on § 1081.203 of the Interim Final Rule and adopts it with the single clarification discussed above in the Final Rule.
This section of the Interim Final Rule, modeled after the Uniform Rules, 12 CFR 19.22, allows the consolidation of actions if the proceedings arise out of the same transaction, occurrence, or series of transactions or occurrences or if the proceedings involve at least one common respondent or a material common question of law or fact. Proceedings are not to be consolidated if doing so would unreasonably delay the proceeding or cause injustice.
Severance, on the other hand, may be granted by the hearing officer only if he or she determines that undue prejudice or injustice would result from a consolidated proceeding and if such prejudice or injustice would outweigh the interests of judicial economy and speed in the adjudication of actions. This is a higher standard than is required for the consolidation of actions.
The Bureau received no comments on § 1081.204 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule governs all motions other than motions to dismiss or motions for summary disposition, which are governed by
Like the Uniform Rules and the FTC Rules, 12 CFR 19.23(d)(1); 16 CFR 3.22(d), this section gives a party ten days after service of a non-dispositive motion to respond to such a motion in writing. It also provides for reply briefs, which must be filed within three days after service of the response. A party's failure to respond to a motion shall waive that party's right to oppose such motion and constitutes consent to the entry of an order substantially in the form of the order accompanying that motion. This section adopts the SEC's 15-page length limitation for non-dispositive motions and oppositions, 17 CFR 201.154(c), and a six page length limitation for reply briefs. The Bureau has adopted these time and length limitations because they provide parties ample opportunity to express their views on matters that do not concern the ultimate disposition of the action.
This section also requires parties to make a good faith effort to meet and confer prior to the filing of a non-dispositive motion in an effort to resolve the controversy by agreement. The Bureau has included the meet-and-confer requirement because it believes such conferences can help obviate the need for, or narrow the scope of, disputed motions, thus saving both the parties and the hearing officer time and resources.
This section provides that the hearing officer shall rule on a non-dispositive motion within 14 days after the expiration of the time for filing of all motions papers authorized by this section, and that the pendency of a motion shall not stay proceedings. This time limitation is based on the FTC Rules, 16 CFR 3.22(e), and is intended to ensure the timely resolution of disputes so that the proceeding as a whole can conclude in a fair and expeditious manner. As noted above, both the FTC and the SEC have revised their rules of practice to provide for the more expeditious resolution of administrative adjudications, and the incorporation of a time period in which the hearing officer must rule on a non-dispositive motion is, in the view of the Bureau, a critical part of that effort.
The Bureau received no comment on § 1081.205 of the Interim Final Rule and adopts it without change in the Final Rule.
Modeled primarily after the SEC Rules, 17 CFR 201.230, this section of the Interim Final Rule adopts the SEC's affirmative disclosure approach to fact discovery in administrative adjudications. Generally, this section requires that the Office of Enforcement make available for inspection and copying certain categories of documents obtained by the Office of Enforcement prior to the institution of proceedings from persons not employed by the Bureau, in connection with the investigation leading to the institution of proceedings, and certain categories of documents produced by persons employed by the Bureau.
The Bureau received several comments requesting amendment to this section. Before addressing each specific comment, the Bureau sets forth its understanding of this provision in order to provide guidance to both the public and future respondents regarding how it intends to comply with the affirmative disclosure obligations of § 1081.206.
As the Bureau stated when it issued the Interim Final Rule, this section is intended to promote the fair and efficient resolution of adjudicatory proceedings. A respondent has an automatic right to inspect and copy documents under this section at the outset of the proceeding. The respondent is not required to make a formal request or wait until after the scheduling conference to gain access to documents underlying the Bureau's decision to initiate proceedings. Instead, the Bureau will provide the respondent with access to, in effect, the documents they would likely seek and obtain in the course of a protracted discovery period soon after service of the notice of charges.
This approach has several advantages. By automatically providing respondents with the factual information gathered by the Office of Enforcement in the course of the investigation leading to the institution of proceedings, this provision helps ensure that respondents have a complete understanding of the factual basis for the Bureau's action and can more accurately and efficiently determine the nature of their defenses or whether they wish to seek settlement. Because this approach renders traditional document discovery largely unnecessary, it will lead to a faster and more efficient resolution of Bureau administrative proceedings, saving both the Bureau and respondents the resources typically expended in the civil discovery process.
Section 1081.206 adopts most of the procedures and conditions set forth in the SEC Rules, as discussed below.
Pursuant to paragraph (a)(1), the Office of Enforcement's obligation under this section relates to documents obtained by the Office of Enforcement. Documents located only in the files of other divisions or offices of the Bureau are beyond the scope of paragraph (a). The term “
Paragraph (a)(1) also provides that the Office of Enforcement will make the documents available for inspection and copying. This provision is modeled after the SEC Rules and the Federal Rules of Civil Procedure. The Bureau anticipates that in most cases it will simply provide either paper or electronic copies of the material at issue to respondents, but has adopted the formulation in this section to preserve flexibility and the Office of Enforcement's right to require inspection and copying in appropriate cases.
Paragraphs (a)(1)(i), (ii), and (iii) describe the types of documents that are subject to the disclosure requirement of paragraph (a)(1). The Bureau interprets its obligation under paragraph (a)(1)(iii) to include both records obtained by the Office of Enforcement directly from persons not employed by the Bureau, as well as documents obtained by the Office of Enforcement indirectly from persons not employed by the Bureau. For example, if the Office of Enforcement obtains information from the Bureau's supervisory staff in connection with an investigation that the supervisory staff obtained from persons not employed by the Bureau,
Paragraph (a)(2) provides that the Office of Enforcement shall also make available each civil investigative demand or other written request to provide documents or to be interviewed issued by the Office of Enforcement in connection with the investigation leading to the institution of proceedings. The Office of Enforcement shall also make available any final examination or inspection reports prepared by any other office of the Bureau if the Office of Enforcement either intends to introduce any such report into evidence or to use any such report to refresh the recollection of, or impeach, any witness. The provisions of paragraph (a)(2) are included in the SEC Rules, but have been broken out into a separate paragraph of this section because they do not comprise documents that the Office of Enforcement obtained from persons not employed by the Bureau, and thus do not technically fall within the scope of paragraph (a)(1).
Pursuant to § 1081.208, a respondent may seek production of other documents pursuant to subpoena. Paragraph (a)(3) is intended to make clear that the affirmative disclosure obligation set forth in paragraphs (a)(1) and (a)(2) does not preclude the availability of subpoenas as separately provided by § 1081.208.
Paragraph (a)(4) provides that this section does not require the Office of Enforcement to produce a final examination or inspection report prepared by any other Office of the Bureau to a respondent who is not the subject of that report. The Bureau has included this provision, which does not appear in the SEC Rules, out of concern for the privileged and confidential nature of examination and inspection reports and to make clear that respondents cannot rely upon the Bureau's affirmative disclosure obligation to require the production of supervision or examination reports concerning other persons. Although the disclosure obligation as drafted would not require the production of such reports, the Bureau included this provision to remove any question regarding the issue.
Paragraph (a)(4) of the Interim Final Rule did not explicitly apply to final inspection or examination reports obtained from other government agencies. The Final Rule has been amended to clarify that such reports, to which the confidentiality and privilege concerns discussed above apply equally, are also excluded from the Bureau's disclosure obligation.
Paragraph (b)(1) of the Interim Final Rule permitted the Office of Enforcement to withhold documents that would otherwise be produced under paragraph (a) under five exceptions. The Final Rule retains these exceptions and adds an additional exception, paragraph (b)(1)(iii), as described below.
The first exception, in paragraph (b)(1)(i) shields information subject to a claim of privilege. The second exception, in paragraph (b)(1)(ii), protects as work product internal documents prepared by persons employed by the Bureau, including consulting experts, which will not be offered in evidence. Work product includes any notes, working papers, memoranda or other similar materials, prepared by an attorney or under an attorney's direction in anticipation of litigation.
The third exception, contained in paragraph (b)(1)(iii), is added to the Final Rule. Modeled upon a similar provision in the Rules of Practice of the Commodity Futures Trading Commission, 17 CFR 10.42, this paragraph protects documents obtained from other governmental entities that are either not relevant to the proceeding or were provided to the Bureau on the condition that the information not be disclosed. The Bureau has added this provision to accommodate any agreements limiting the disclosure of documents received from other governmental entities. To the extent the Bureau withholds documents pursuant to this exception, it will not rely upon those documents at the hearing.
The fourth exception, contained in paragraph (b)(1)(iv) of the Final Rule, protects the identity of a confidential source.
Paragraph (b)(2) of this section provides that paragraph (b) does not authorize the Office of Enforcement to withhold material exculpatory evidence in the possession of the Office of Enforcement that would otherwise be subject to disclosure pursuant to paragraph (a). Pursuant to this section, the Office of Enforcement will provide respondents with material exculpatory evidence it has obtained from persons not employed by the Bureau even if such evidence is contained in documents that the Office of Enforcement is otherwise permitted to withhold pursuant to paragraph (b)(1).
The Bureau declines to adopt the SEC Rules' explicit reference to
The Bureau also adds the clause “that would otherwise be required to be
Paragraph (c) provides that the hearing officer may require the Office of Enforcement to submit a withheld document list, and may order that a withheld document be made available for inspection and copying. Paragraph (c) has been amended to incorporate a provision from the Rules of Practice of the Commodity Futures Trading Commission, 17 CFR 10.42. This provision limits the disclosures that the Bureau will make with respect to documents withheld pursuant to paragraph (b)(1)(iii). The Bureau will inform the other parties of the fact that such documents are being withheld, but will not make further disclosures regarding those documents. Like paragraph (b)(1)(iii), this provision was added to enable the Bureau to comply with agreements limiting the disclosure of documents received from other governmental entities.
Pursuant to paragraph (d), the Office of Enforcement is required to make the material governed by this section available for inspection and copying no later than seven days after service of the notice of charges unless otherwise ordered by the hearing officer. The Bureau has considered requiring production of the covered material at the time the notice of charges is served, but has decided against such an approach. A provision for a delay of no more than seven days will allow parties to move for any appropriate protective orders and is consistent with the SEC's approach in this regard.
Paragraphs (e) and (f) set forth the procedure to obtain copies of documents and the costs of such copies. As noted above, the Bureau anticipates providing electronic copies of the documents to respondents in most cases, and paragraph (f) accounts for such a provision of electronic documents. In order to preserve the discretion of the Office of Enforcement, however, this paragraph includes provisions governing the inspection and copying of documents. In order to provide for the safekeeping of documents subject to inspection, and to control costs associated with the implementation of this section, paragraph (e) provides that documents shall be made available for inspection and copying at the Bureau office where they are ordinarily maintained, or at such other place as the parties may agree. In cases in which electronic production is unwarranted, this process appears more likely to result in prompt access to documents obtained by the Office of Enforcement that are the basis of the allegations contained in the notice of charges.
Paragraph (g) of this section imposes upon the Office of Enforcement a duty to supplement its disclosures under paragraph (a)(1) of this section if it acquires information after making its disclosures that it intends to rely upon at a hearing. Although the SEC Rules do not include an analogous provision, the Bureau believes that imposing a duty to supplement will reduce the need for unnecessary discovery requests.
Like the SEC Rules, 17 CFR 201.230(h), paragraph (h) provides for a “harmless error” standard in the event the Office of Enforcement fails to make available to a respondent a document required to be made available by this section.
Finally, paragraph (i) is modeled on the FTC Rules, 16 CFR 3.31(g), and provides a “claw back” mechanism whereby inadvertent disclosure of privileged or protected information or communications shall not constitute a waiver of the privilege or protection, provided that the party took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error. Furthermore, paragraph (i) provides that disclosure of privileged or protected information or communications shall waive the privilege only if the waiver was intentional and that the scope of such waiver is limited to the undisclosed information or communications concerning the same subject matter, which in fairness ought to be considered together with the disclosed information or communications. Paragraph (i) expressly applies to disclosures made by any party during an adjudication proceeding.
The Bureau received several comments to this section, and will address them in turn.
This approach will provide respondents automatic access to the factual information gathered by the Office of Enforcement in the course of the investigation leading to the institution of proceedings. As a result, the process will help ensure that respondents have a complete understanding of the basis for the Bureau's action, and can assess their defenses accordingly. If necessary, respondents may seek to obtain additional information through subpoena.
Furthermore, the exceptions to the Bureau's affirmative disclosure obligation do not disadvantage respondents as compared to traditional civil discovery because the exceptions protect documents that often would be protected in traditional civil discovery. When producing documents in traditional discovery, litigants routinely seek protection for documents that (i) are privileged; (ii) constitute work product; (iii) are irrelevant or required to be kept confidential; (iv) would reveal the identity of a confidential source;
In short, the Bureau believes the affirmative disclosure process will promote a fair and efficient resolution of administrative proceedings without placing the respondent at an unfair disadvantage.
Even without third-party discovery depositions, respondents will be able to present testimony of third-parties with knowledge of relevant matters at the hearing to support their defense. Pursuant to § 1081.208, respondents may request the issuance of a subpoena for the attendance and testimony of a witness at the hearing. If a witness is unavailable for the hearing, a respondent may take that witness's deposition and introduce that testimony on the record at a hearing.
The Bureau believes that the marginal benefit of permitting third-party interrogatories is not justified in light of the likelihood that disputes over interrogatories may delay the proceedings. The Bureau notes that neither the SEC's Rules nor the Uniform Rules permit prehearing discovery depositions or interrogatories.
As drafted, § 1081.208 requires a party to request the issuance of a subpoena from the hearing officer, and generally requires the Bureau to seek judicial enforcement of subpoenas. The Bureau considered whether to permit parties to issue subpoenas. The Bureau declined to do so because a hearing officer can help ensure that subpoenas are not “unreasonable, oppressive, excessive in scope, or unduly burdensome.” The commenter requested that respondents be permitted to enforce subpoenas, but the Dodd-Frank Act requires the Bureau to do so. 12 U.S.C. 5562(b)(2). The Bureau's General Counsel will enforce subpoenas on relation of a respondent, provided such enforcement is consistent with the law and the policies of the Dodd-Frank Act.
The third-party discovery permitted by the Interim Final Rule is consistent with the practice of the SEC, which shares a common approach to discovery with the Bureau.
This practice is also appropriate considering that respondents must demonstrate that a witness is unavailable for the hearing in order to obtain a deposition subpoena. This standard is more easily enforced if a party has to request, and a hearing officer has to issue, those subpoenas. The SEC and the Uniform Rules both restrict depositions to circumstances when a witness will not be available for the hearing, and both require parties to request or apply for a deposition subpoena.
Likewise, the Bureau would consider information obtained by the Office of Enforcement through the Bureau's supervisory channels to be obtained “in connection with the investigation” if such information formed the factual basis of an enforcement action.
In addition, respondents will have the ability to conduct some limited discovery, including document subpoenas, depositions of third-parties who are unavailable for the hearing, and, in some circumstances, limited expert discovery.
The Bureau adopts § 1081.206 of the Interim Final Rule with the changes discussed above.
Modeled after the SEC Rules, 17 CFR 201.231, this section of the Interim Final Rule provides that a respondent may request for inspection and copying any statement of a witness to be called by the Office of Enforcement that (1) pertains to or is expected to pertain to his or her direct testimony; and (2) would be required to be produced pursuant to the Jencks Act, 18 U.S.C. 3500, if the adjudication proceeding were a criminal proceeding. This section is intended to promote the principles of transparency and efficiency discussed with respect to § 1081.206. Note, however, that the respondent is required to move for the production of these statements. The Bureau notes that the requirements set forth in paragraph (a) of this section do not overcome the limitations on discovery related to expert communications set forth in § 1081.210(e).
The Jencks Act does not require production of a witness's prior statement until the witness takes the stand. The Bureau expects that in most cases, the Office of Enforcement will provide prehearing production voluntarily. Submission of a witness's prior statement, however, may provide a motive for intimidation of that witness or improper contact by a respondent with the witness. This section provides, therefore, that the time for delivery of witness statements is to be determined by the hearing officer, so that a case-specific determination of such risks can be made if necessary. Upon a showing that there is substantial risk of improper use of a witness's prior statement, the hearing officer may take appropriate steps. For example, a hearing officer may delay production of a prior statement, or prohibit parties from communicating with particular witnesses.
Like § 1081.206 and the SEC Rules, this section provides for a “harmless error” standard in the event the Office of Enforcement fails to make available a statement required to be made available by this section.
The Bureau received no comment on § 1081.207 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule is modeled after the SEC Rules, 17 CFR 201.232, and provides that, in connection with a hearing, a party may request the issuance of a subpoena for the attendance and testimony of a witness or the production of documents. The availability of subpoenas for witnesses and documents ensures that respondents have available to them the necessary tools to adduce evidence in support of their defenses. A subpoena may only be issued by the hearing officer (as opposed to counsel) and the section sets forth procedures to prevent the issuance of subpoenas that may be unreasonable, oppressive, excessive in scope, or unduly burdensome. The section also sets forth procedures and standards applicable to a motion to quash or modify a subpoena.
Paragraph (i) (which was paragraph (h) in the Interim Final Rule) of this section also provides that, if a subpoenaed person fails to comply, the Bureau, on its own motion or on the motion of the party at whose request the subpoena was issued, may seek a judicial order requiring compliance. In accordance with section 1052(b)(2) of the Dodd-Frank Act, which authorizes the Bureau or a Bureau investigator to seek enforcement of a subpoena, paragraph (i) only authorizes the Bureau—and not the party at whose request the subpoena was issued—to seek judicial enforcement of the subpoena.
One commenter asserted that respondents should be permitted to issue and enforce subpoenas. The Bureau's substantive response to this comment is discussed above in the context of a similar comment addressing § 1081.206.
Another commenter stated that the hearing officer should not be permitted to delegate the manual signing of deposition subpoenas, as there needs to be a basic check on the issuance of subpoenas, such as review by the hearing officer. This section provides that a hearing officer must issue a subpoena only upon the request of a party, which includes either respondents or the Bureau, and only if the hearing officer determines that the subpoena is not “unreasonable, oppressive, excessive in scope, or unduly burdensome.”
Paragraph (c) of the Interim Final Rule permitted the hearing officer to delegate the manual signing of the subpoena to
The Bureau on its own initiative added new paragraph (g) to § 1081.208. This paragraph requires a person responding to a subpoena for documentary material to file a sworn certificate of compliance with the subpoena response. This is intended to confirm that all of the documentary material required by the subpoena and in the possession, custody, or control of the person to whom the subpoena is directed has been produced and made available to the custodian.
The Bureau adopts § 1081.208 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule, generally modeled after the Uniform Rules, 12 CFR 19.27, and the SEC Rules, 17 CFR 201.233, provides that parties may seek to depose material witnesses unavailable for the hearing upon application to the hearing officer for a deposition subpoena. The application must state that the witness is expected to be unavailable due to age, illness, infirmity or other reason and that the petitioning party was not the cause of the witness's unavailability. The Bureau has adopted the Uniform Rules' formulation of this standard, which provides for such depositions when the witness is “otherwise unavailable,” to account for the possible unavailability of witnesses for reasons other than those specified in the SEC Rules.
Paragraph (a)(2) requires a party seeking to record a deposition by audio-visual means to so note in the request for a deposition subpoena. This provision is modeled on Federal Rule of Civil Procedure 30(b)(3). Paragraph (a)(4) also provides that a deposition cannot be taken on less than 14 days' notice to the witness and all parties, absent an order to the contrary from the hearing officer.
Paragraph (g) incorporates several provisions from the SEC Rules. It provides that the witness being deposed may have an attorney present during the deposition; that objections to questions of evidence shall be noted by the deposition officer, but that only the hearing officer shall have the power to decide on the competency, materiality, or relevance of evidence; and that transcripts shall be available to the deponent and each party for purchase. Paragraph (g) of the Final Rule was amended slightly to provide that the deposition shall be filed with the Office of Administrative Adjudication (as opposed to the Executive Secretary as set forth in the Interim Final Rule).
Paragraph (h) of this section also incorporates certain procedures from § 1081.208 of the Interim Final Rule pertaining to subpoenas. Those procedures are intended to protect against deposition requests that may be unreasonable, oppressive, excessive in scope, or unduly burdensome, and to provide a mechanism for signing and service of a deposition subpoena, the filing of a motion to quash, and for enforcing subpoenas. This paragraph was amended slightly to conform to the amendments to § 1081.208.
One commenter suggested that respondents should be permitted to conduct pre-hearing depositions of third parties with relevant information, even if such witnesses will be available for the hearing. In promulgating the Interim Final Rule, the Bureau considered whether respondents should be allowed to issue subpoenas for the purpose of compelling prehearing discovery depositions as is allowed in actions under the Federal Rules of Civil Procedure. The Bureau believes expanding the scope of prehearing discovery to permit discovery depositions is not warranted for several reasons.
First, the Bureau believes that even if limitations were placed on the availability of discovery depositions, there remains a significant potential for extensive collateral litigation over their use. Second, use of discovery depositions is in tension with the statutory timetable for hearings in cease-and-desist proceedings under section 1053(b) of the Dodd-Frank Act. Indeed, in part for these reasons, the Final Rule, like the Interim Final Rule, allows the hearing officer to decide whether and to what extent to permit expert discovery in adjudication proceedings. Allowing prehearing depositions would present extreme scheduling difficulties in those cases in which respondents did not request hearing dates outside the 30-to-60 day timeframe set forth in the Dodd-Frank Act.
Finally, the Final Rule includes three provisions that address in significant part a respondent's interest in obtaining discovery prior to the start of the hearing. Section 1081.206 mandates that the Office of Enforcement generally make available not only transcripts of testimony, but documents obtained from persons not employed by the Bureau during the investigation leading to the initiation of the proceeding, as well as certain documents of the Bureau. Section 1081.208 authorizes the issuance of subpoenas
The Bureau adopts § 1081.209 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule is modeled after the FTC Rules, 16 CFR 3.31A. Neither the Uniform Rules nor the SEC Rules provide for expert discovery. The Bureau has provided for expert discovery in appropriate cases so that the parties may fully understand the other side's position prior to the hearing, which will enable a clearer and more efficient airing of the issues at the hearing, and which may also clarify the issues for a possible prehearing settlement. It will also enable the parties to identify rebuttal expert witnesses, if needed, prior to the hearing.
Paragraph (a) provides that the hearing officer shall establish a date for the exchange of expert reports in the scheduling order. This provision is intended to allow flexibility in scheduling expert discovery depending on the complexity of the case and the date of the hearing.
Like the FTC Rules, 16 CFR 3.31A, paragraph (b) limits parties to five expert witnesses, including any rebuttal or surrebuttal experts, except in extraordinary circumstances. The Bureau believes this limitation will provide the parties with a sufficient opportunity to present expert testimony without unduly delaying the proceedings. Paragraph (b) also provides that no party may call an expert witness unless that witness has been identified and has provided a report in accordance with this section, unless the hearing
Paragraph (c) sets forth the required contents of an expert report. This section is based upon the corresponding provisions of the FTC Rules.
Paragraph (d) provides for expert depositions, which are not to exceed eight hours absent agreement of the parties or an order by the hearing officer. These limitations are intended to provide adequate time to prepare for expert testimony without unduly delaying the proceedings. Paragraph (d) also provides that expert depositions shall be conducted pursuant to the procedures set forth in § 1081.209. Finally, paragraph (d) provides that an expert's deposition shall be conducted after submission of the expert's report but no later than seven days prior to the deadline for submission of rebuttal expert reports. This provision is intended to allow parties to rely upon the deposition of an opposing party's expert in the preparation of a rebuttal expert report. Because, pursuant to paragraph (a), rebuttal reports are due 28 days after the exchange of expert reports, expert depositions will need to take place within that 28-day period.
Finally, paragraph (e) (paragraph (f) of the Final Rule) authorizes the hearing officer to dispense with expert discovery in appropriate cases. For example, the Bureau envisions hearing officers relying on this provision in cease-and-desist proceedings brought pursuant to section 1053(b) of the Dodd-Frank Act, where the respondent has not requested a hearing date outside the statutory 30-to-60 day timeframe. In such cases, it may be appropriate to dispense with expert discovery for timing reasons, while allowing the parties to call expert witnesses.
After the Bureau promulgated the Interim Final Rule, the FTC amended its rule governing expert discovery.
The Bureau did not receive comments on § 1081.210 of the Interim Final Rule, and with exception to the changes discussed above, adopts it without change in the Final Rule.
This section of the Interim Final Rule sets forth the procedure and standards applicable to interlocutory review by the Director of a ruling or order of the hearing officer.
Paragraph (a) of this section provides that the Director may take up a matter on his or her own motion at any time, even if a hearing officer does not certify it for interlocutory review, and that this section is the exclusive means for reviewing a hearing officer's ruling prior to the issuance of a recommended decision by the hearing officer.
Paragraph (b) provides that any party may file a motion for certification of a ruling or order for interlocutory review within five days of service of the order or ruling. Responses to such motions are due within three days, and the hearing officer is required to rule upon such a motion within five days thereafter.
Paragraph (c) sets forth the permissible bases for certifying a ruling or order. Certification is appropriate if the hearing officer's ruling would compel testimony or production of documents from Bureau officers or employees, or officers or employees from another governmental agency. This is consistent with the SEC Rules, 17 CFR 201.400. Like the FTC Rules, 16 CFR 3.23(a)(1), however, this provision includes officers and employees from other governmental agencies, and not just the Bureau, in order to afford the same treatment to other government agencies. Paragraph (c) also provides for certification of rulings or orders where there is a substantial ground for difference of opinion and an immediate review may materially advance the completion of the proceeding or subsequent review will be an inadequate remedy. The hearing officer may also certify a ruling or order where the ruling or order involves a motion for disqualification of the hearing officer or the suspension of an individual from appearing before the Bureau.
Paragraph (d) provides that a party whose motion for certification is denied by the hearing officer may petition the Director directly for interlocutory review. This provision is intended to guard against a hearing officer's unwillingness to certify a ruling that appears to meet the standards set forth in the section. The Bureau expects such direct petitions to the Director to be used sparingly.
Paragraph (e) governs the Director's review of matters certified pursuant to paragraph (c) or for which review is sought pursuant to paragraph (d). It sets forth the policy of the Bureau that interlocutory review is disfavored and provides that the Director will grant such review only in extraordinary circumstances.
Paragraph (f) provides that proceedings will not be stayed by the filing of a motion for certification for interlocutory review or a grant of such review unless the hearing officer or the Director shall so order. This is intended to promote the expeditious resolution of proceedings and to deter frivolous motions for certification or review.
The Bureau did not receive comment on § 1081.211 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule establishes the procedures and standards for motions to dismiss and motions for summary disposition. Section 1081.212 expressly provides for the filing of motions to dismiss, but makes clear that filing such a motion does not affect a party's obligation to file an answer or take any other action. This is intended to ensure that motions to dismiss do not delay the proceedings unnecessarily. The timelines for decisions on dispositive motions,
Paragraph (b) provides that a respondent may file a motion to dismiss asserting that, even assuming the truth of the facts alleged in the notice of charges, it is entitled to dismissal as a matter of law. Neither the SEC Rules, the FTC Rules, nor the Uniform Rules specifically set forth procedures or a standard applicable to motions to dismiss, although the FTC Rules and Uniform Rules appear to contemplate such motions.
Paragraphs (c) and (d) govern the filing of motions for summary disposition. They adopt standards similar to those set forth in the Uniform Rules, the SEC Rules, and the FTC Rules for such motions. Any party to a proceeding may file a motion for summary disposition of a proceeding or for partial summary disposition of a proceeding if: (1) There is no genuine issue as to any material fact; and (2) the moving party is entitled to a favorable decision as a matter of law. The motion, which may be filed after a respondent's answer has been filed and documents have been made available for inspection and copying pursuant to § 1081.206, must be accompanied by a statement of the uncontested material facts, a brief, and any documentary evidence in support of the motion.
Any party opposing such a motion must file a statement setting forth those material facts as to which he or she contends a genuine dispute exists, supported by the same type of evidence permitted with a motion for summary disposition, and a brief in support of the contention that summary disposition would be inappropriate. These paragraphs are modeled after the Uniform Rules, 12 CFR 19.29.
Pursuant to paragraphs (e), (f), and (g), motions to dismiss and for summary disposition are subject to a 35-page limit (modeled on the SEC Rules, 17 CFR 201.250(c)), responses to such motions are due within 20 days and are subject to a 35-page limit (modeled on the Uniform Rules, 12 CFR 19.29(b)(1)), and reply briefs are due within five days of the response and shall not exceed ten pages. Oral argument is permitted at the request of any party or by motion of the hearing officer.
Paragraph (h) provides that the hearing officer must decide a dispositive motion within 30 days of the expiration of the time for filing all oppositions and replies. The Uniform Rules do not set a deadline for a decision on dispositive motions. The FTC Rules provide for the Commission to decide substantive motions within 45 days, 16 CFR 3.22(a), and the SEC Rules state that motions for summary disposition are to be decided “promptly” by the hearing officer, 17 CFR 201.250(b). The Bureau has adopted the 30-day timeframe for decisions on dispositive motions in keeping with its emphasis on expeditious decision-making in administrative proceedings. The Bureau believes that 30 days affords sufficient time for the hearing officer to properly assess the merits of the motion and draft either a ruling denying the motion or a recommended decision granting it.
If the hearing officer finds that a party is not entitled to dismissal or summary disposition, he or she shall make a ruling denying that motion. This ruling would not be subject to interlocutory appeal unless such an appeal was granted pursuant to the procedures and standards set forth in § 1081.211. If the hearing officer determines that dismissal or summary adjudication is appropriate, he or she will issue a recommended decision to that effect. If a party, for good cause shown, cannot yet present facts essential to justify opposition to the motion, the hearing officer is to deny or defer the motion.
The Bureau received no comments on § 1081.212 of the Interim Final Rule and adopts it without change in the Final Rule.
Section 1081.213 is modeled on the FTC Rules, 16 CFR 3.24(a)(5). It permits a hearing officer who denies summary adjudication of the whole case nevertheless to issue an order specifying the facts that appear without substantial controversy. Those facts will be deemed established in the proceeding. This section enables the hearing officer to narrow the dispute between the parties so that the hearing can proceed as efficiently as possible.
The Bureau received no comment on § 1081.213 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule sets forth the procedures for a prehearing conference, which the hearing officer may convene on his own motion or at the request of a party. It sets forth matters that may be discussed at a prehearing conference. As with a scheduling conference pursuant to § 1081.203, the conference is presumptively public unless the hearing officer determines otherwise under the standard set forth in § 1081.119.
The Bureau received no comment on § 1081.214 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule was modeled primarily after the Uniform Rules, 12 CFR 19.32, which provide for mandatory prehearing submissions by the parties. Section 1081.215 requires that the following documents be served upon the other parties no later than ten days prior to the start of the hearing: a prehearing statement; a final list of witnesses to be called to testify that includes a description of the expected testimony of each witness; any prior sworn statements that a party intends to admit into evidence pursuant to § 1081.303; a list of exhibits along with a copy of each exhibit; and any stipulations of fact or liability. The failure of a party to comply with this provision will preclude the party from presenting any witnesses or exhibits not listed in its prehearing submission at the hearing, except for good cause shown. To account for cases in which the hearing officer has dispensed with expert discovery, this section also requires that a statement of any expert's qualifications and other information concerning the expert be turned over if it has not been provided pursuant to § 1081.210.
The FTC Rules do not provide for a prehearing submission, and the SEC Rules, 17 CFR 201.222, do not make such a submission mandatory. The Bureau has followed the Uniform Rules' model as it believes that prehearing submissions will assist the parties in clarifying and narrowing the issues to be adjudicated at the hearing, which is especially important under the expedited hearing schedule provided for by section 1053(b) of the Dodd-Frank Act and this Final Rule.
The Bureau received no comment on § 1081.215 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule, based upon the SEC Rules, 17 CFR 201.210, allows for amicus briefs in proceedings under this part, but only
One commenter expressed concern that the authorization for governmental agencies to file amicus briefs without receiving prior permission will result in the filing of numerous amicus briefs. The Bureau believes that amicus briefs from governmental entities are likely to make a valuable contribution to the adjudicative process, and are unlikely to become overwhelming or detrimental. The Bureau will consider revisiting this section if this belief proves incorrect, but the Final Rule adopts paragraph (a) of the Interim Final Rule without change.
A motion to file an amicus brief is subject to the procedural requirements set forth in § 1081.205. An amicus will be granted oral argument only for extraordinary reasons. In order to provide additional guidance to parties seeking to file amicus briefs, § 1081.216(d) provides that amicus briefs shall be filed pursuant to § 1081.111 and shall comply with the requirements of § 1081.112. Amicus briefs shall also be subject to the length limitations set forth in § 1081.212(e). The Bureau received no comments regarding the rest of § 1081.216 of the Interim Final Rule, and adopts the remaining paragraphs without change in the Final Rule.
This section of the Interim Final Rule provides that hearings before the Bureau will be presumptively public, a practice that is consistent with the provisions of the FTC Rules, 16 CFR 3.41(a), the SEC Rules, 17 CFR 201.301, and the Uniform Rules, 12 CFR 19.33(a). Specifically, the Interim Final Rule provides that hearings will be public unless a confidentiality order is entered by the hearing officer according to the standard set forth in § 1081.119, or unless the Director otherwise orders a non-public hearing on the ground that holding an open hearing would be contrary to the public interest.
One commenter stated that the hearing officer needs greater flexibility in limiting the public nature of adjudication hearings. This commenter argued that allowing the hearing officer to limit the public nature of the proceeding in accordance with the standard set forth in § 1081.119 was problematic and advocated for the hearing officer to be permitted to establish time, place and manner limitations on the attendance of the public and the media for any public hearing. This commenter also recommended that the Director be permitted to close a hearing.
The Bureau has considered this comment but determined to retain its articulated standard and presumption of public hearings. Incorporating the standard set forth in § 1081.119 into the standard for limiting the public nature of a hearing provides meaningful guidance to the hearing officer as to the types of hearings that should not be public, and promotes consistency in adjudication proceedings. With respect to the commenter's recommendation that the Director have the authority to close a public hearing, this section as previously promulgated allows the Director to limit the public nature of an adjudication proceeding on the grounds that holding an open hearing would be contrary to the public interest.
The Bureau adopts § 1081.300 of the Interim Final Rule without change in the Final Rule.
This section of the Interim Final Rule is modeled after the Uniform Rules, 12 CFR 19.21. It provides that the failure of a respondent to appear in person or by duly authorized counsel at the hearing may constitute a waiver of the respondent's right to a hearing and may be deemed an admission of the facts alleged and a consent to the relief sought in the notice of charges. This section directs the hearing officer to file a recommended decision addressing the relief sought in the notice of charges, without further notice to the respondent, when respondents fail to appear at the hearing.
The Bureau received no comments on § 1081.301 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule provides general principles for the conduct of hearings and the order in which the parties are to present their cases. The first sentence emphasizing the goals of fairness, impartiality, expediency, and orderliness is drawn from the SEC Rules, 17 CFR 201.300. The remainder of the section, which governs the order in which the parties are to present their cases, is modeled after the Uniform Rules, 12 CFR 19.35.
The Bureau received no comment on § 1081.302 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule sets forth the provisions governing the offering and admissibility of evidence at hearings, and adopts evidentiary standards similar to those set forth in the FTC Rules, the SEC Rules, and the Uniform Rules.
Paragraph (a) of this section provides that enforcement counsel shall bear the burden of proving the ultimate issue(s) of the Bureau's claims at the hearing. Consistent with general administrative practice, paragraph (b) of § 1081.303 provides that evidence that is relevant, material, reliable, and not unduly repetitive shall be admissible to the fullest extent authorized by the APA and other applicable law, and that evidence shall not be excluded solely on the basis of its being hearsay if it is otherwise admissible and bears satisfactory indicia of reliability. Paragraph (c) of this section provides that official notice may be taken of any material fact that is not subject to reasonable dispute in that it is either generally known or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Paragraph (d)(1) provides that duplicate copies of documents are admissible to the same extent as originals unless a genuine issue is raised about the veracity or legibility of a document. Paragraph (d)(2) of this section provides that, subject to paragraph (b), any document prepared by a prudential regulator or by a State regulatory agency is presumptively admissible either with or without a sponsoring witness. On its own initiative, the Bureau is revising paragraph (d)(2) of this section to add the Bureau to the list of regulators whose documents are presumptively admissible with or without a sponsoring witness. The Uniform Rules, 12 CFR 19.36(c)(2), on which this paragraph is modeled, is promulgated by each of the prudential regulators, and therefore the intent of this paragraph is, in part, for each regulator to have its own documents be deemed presumptively admissible. Consistent with the intended purpose of this paragraph, the Bureau adds itself as a regulator under paragraph (d)(2). Finally, paragraph (d)(4) of this section provides that documents generated by respondents that come from their own files are
Paragraph (e) of this section of the Interim Final Rule provides that objections to the admissibility of evidence must be timely made and that a failure to object to the admission of evidence shall constitute a waiver of the objection.
Pursuant to paragraph (f) of this section of the Interim Final Rule, parties may, at any stage of the proceeding, stipulate as to any relevant matters of fact or the authentication of any relevant documents. Such stipulations may be received in evidence at the hearing and are binding on the parties.
Paragraph (g) of this section of the Interim Final Rule provides that witnesses at a hearing are required to testify under oath or affirmation. Parties are entitled to present their cases or defenses by sworn oral testimony and documentary evidence, including through the testimony of a witness appearing via videoconference or teleconference.
Paragraph (h) of this section, which relates to the admissibility of prior sworn statements of witnesses, is modeled after the SEC Rules, 17 CFR 201.235. Under paragraph (h) prior sworn statements may be admitted if a witness is dead, outside of the United States, unable to attend because of age, sickness, infirmity, imprisonment or other disability, or if the party offering the sworn statement is unable to procure the attendance of the witness by subpoena. Even if these conditions are not met, a prior sworn statement may be introduced into the record at the discretion of the hearing officer.
The Bureau adopts § 1081.303 of the Interim Final Rule with the changes discussed above.
Modeled on the FTC Rules, 16 CFR 3.44, this section of the Interim Final Rule provides that hearings will be stenographically reported and transcribed and that the original transcript shall be part of the record. It outlines the procedure by which a party may request correction of the transcript. Finally, it states that upon completion of the hearing, the hearing officer will issue an order closing the record after giving the parties three days to determine whether the record is complete or requires supplementation.
The Bureau received no comment on § 1081.304 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule is drawn largely from the Uniform Rules, 12 CFR 19.37, and provides that the parties may file proposed findings of fact, proposed conclusions of law, and a proposed order within 30 days following service of a notice on the parties that the transcript has been properly filed or within such longer period as the hearing officer may order. Proposed findings and conclusions must be supported by citation to any relevant authorities, and by page references to any relevant portions of the record. Responsive briefs may be filed to these proposed findings and conclusions within 15 days after the deadline for the proposed findings and conclusions, provided that the party responding has filed its own proposed findings and conclusions. The hearing officer shall not order the filing by any party of any post-hearing brief or responsive brief in advance of the other party's filing of its post-hearing brief.
The Bureau received no comment on § 1081.305 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule, drawn from the SEC Rules, 17 CFR 201.350, lists the documents that comprise the record of a proceeding before the hearing officer. It provides that those documents excluded from evidence should be excluded from the record but retained until either a decision of the Bureau has become final, or the conclusion of any judicial review of the Director's final order. This section also states that a copy of a document in the record may be substituted for an original.
The Bureau has amended this section to reflect the transfer of certain functions to the Office of Administrative Adjudications.
The Bureau adopts § 1081.306 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule adopts the general framework of the SEC Rules, 17 CFR 201.360, governing decisions by the hearing officer. Section 1081.400 provides that the hearing officer will file a recommended decision in each case within a specified time frame. Unlike the SEC Rules, which provide that the hearing officer will issue an “initial decision,” this section provides that the hearing officer's decision will be a “recommended decision” to the Director.
This section also deviates from the analogous SEC Rules in that it provides for only one timeline, rather than multiple “tracks” or timelines. Paragraph (a) of this section provides that the hearing officer will file a recommended decision in each case no later than 90 days after the deadline for filing post-hearing responsive briefs and in no event later than 300 days after service of the notice of charges. The 300-day timeframe is taken from the SEC Rules, 17 CFR 201.360(a)(2), and the 90-day timeframe is modeled on the FTC Rules, 16 CFR 3.51(a).
Paragraph (b) of this section provides that requests by the hearing officer for extensions of this time frame must be made to the Director and will be granted only if the Director determines that additional time is necessary or appropriate in the public interest. The Bureau anticipates such requests and extensions to be rare. As noted above, this provision was adopted to ensure the timely resolution of adjudication proceedings in light of the experience of other agencies. The Bureau believes that the 90-day and 300-day timelines set forth in this section provide sufficient time for the hearing officer to conduct appropriate proceedings and issue an informed recommended decision.
Paragraph (c) of this section is modeled on the SEC Rules, 17 CFR 201.360(b), and sets forth the contents of the recommended decision, providing that the recommended decision shall include a statement of findings of fact and conclusions of law, as well as the reasons or basis therefore, and an appropriate order, sanction, relief or denial thereof. The recommended decision shall also state that a notice of appeal may be filed within ten days after service of the recommended decision, and shall include a statement that the Director may issue a final decision and order adopting the recommended decision, unless a party timely files and perfects a notice of appeal. The recommended decision shall be filed with the Office of Administrative Adjudication (as opposed to the Executive Secretary as set forth in the Interim Final Rule), which will promptly serve the recommended decision on the parties.
Drawing from the FTC Rules, 16 CFR 3.51(d), paragraph (d) of this section provides that the recommended decision shall be made by the hearing officer who presided over the hearing, except when he or she has become unavailable to the Bureau. In such
The Bureau received no comment on § 1081.400 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule is modeled on the Uniform Rules, 12 CFR 19.38(b), and the SEC Rules, 17 CFR 201.351(c). It directs the hearing officer to furnish to the Director a certified index for the case at the same time that the hearing officer files the recommended decision. It also establishes the process by which the record is transmitted to the Director for review.
The Bureau received no comment relating to this section of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule sets forth the process for review of a recommended decision by the Director.
Paragraph (a) of this section is drawn from the FTC Rules, 16 CFR 3.52(b), and states that any party may object to the recommended decision of the hearing officer by filing a notice of appeal to the Director within ten days of the recommended decision and perfecting that notice of appeal by filing an opening brief within 30 days of the recommended decision. Any party may respond to the opening brief by filing an answering brief within 30 days of service of the opening brief, and reply briefs may be filed within seven days after that. Appeals to the Director are available as of right in all cases where the hearing officer has issued a recommended decision.
A commenter noted that the ten-day deadline by which a party must file a notice of appeal is shorter than the 30-day deadline required by the prudential regulators, and urged the Bureau to extend its deadline to 30 days. The Bureau has considered this suggestion but has decided to keep the ten-day deadline. The burden on a party to file a proper notice of appeal is minimal. A party need only specify the party or parties against whom the appeal is taken, and designate the recommended decision or part thereof appealed from. The ten-day timeline provides adequate time to make these initial determinations. The more comprehensive document in the appeals process, the opening brief, is not due until 30 days from the service of the recommended decision. Moreover, an extension of the deadline for a notice of appeal would require extension of other deadlines in the appeal process, such as the Director's review in the absence of a notice of appeal.
This section also provides that within 40 days after the date of service of the recommended decision, the Director, on his or her own initiative, may order further briefing or argument with respect to any recommended decision or portion of any recommended decision or may issue a final decision and order adopting the recommended decision. The 40-day time period is intended to provide the Director with the benefit of knowing whether any party has filed and perfected an appeal before determining whether further briefing and argument regarding a recommended decision is necessary. Any such order shall set forth the scope of further review and the issues that will be considered and will provide for the filing of briefs if the Director deems briefing appropriate.
Finally, this section provides that, pursuant to 5 U.S.C. 704, a perfected appeal to the Director of a recommended decision is a prerequisite to the seeking of judicial review of a final decision and order, unless the Director issues a final decision and order that does not incorporate the recommended decision, in which case judicial review shall be limited to that portion of the Director's final decision and order that does not adopt the recommended decision.
The Bureau adopts § 1081.402 of the Interim Final Rule without change in the Final Rule.
This section of the Interim Final Rule outlines the requirements for briefs filed with the Director. Paragraph (a) of this section is modeled on the SEC Rules, 17 CFR 201.450(b), and governs the content of briefs. Paragraph (b) is also drawn from the SEC Rules, 17 CFR 201.450(c), and sets forth length limitations for briefs. Unlike the SEC and the FTC, the Bureau has placed page limits—rather than word limits—on briefs. This change is intended to simplify practice before the Director.
The Bureau received no comment on § 1081.403 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule adopts the SEC's policy for oral argument on appeal wherein the Director will consider appeals, motions, and other matters on the basis of the papers filed without oral argument unless the Director determines that the presentation of facts and legal arguments in the briefs and record and the decisional process would be significantly aided by oral argument. A party who seeks oral argument is directed to indicate such a request on the first page of its opening or answering brief. Oral argument shall be public unless otherwise ordered by the Director.
The Bureau received no comment on § 1081.404 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule sets forth the provisions regarding the final decision and order of the Director. Paragraph (a) provides for the scope of the Director's review and defines the record before the Director as consisting of all items that were part of the record below in accordance with § 1081.306; any notices of appeal or order directing review; all briefs, motions, submissions, and other papers filed on appeal or review; and the transcript of any oral argument held.
Paragraph (b) provides that the Director may have the advice and assistance of decisional employees in considering and disposing of a case. Paragraph (c) provides that the Director's final decision will affirm, adopt, modify, set aside, or remand for further proceedings the hearing officer's recommended decision and will include a statement of the reasons or basis for the Director's actions and the findings of fact relied upon.
In accordance with section 1053 of the Dodd-Frank Act, paragraph (d) of this section provides that, at the expiration of the time permitted for the filing of reply briefs with the Director, the Office of Administrative Adjudication will notify the parties that the case has been submitted for final Bureau decision by the Director. The Director will then issue a final decision and order within 90 days of such notification to the parties. This policy
Paragraph (e) provides that copies of final decisions and orders by the Director will be served upon each party, upon other persons required by statute, and, if directed by the Director or required by statute, upon any appropriate State or Federal supervisory authority. The final decision and order will also be published on the Bureau's Web site or as otherwise deemed appropriate by the Bureau.
The Bureau received no comments on § 1081.405 of the Interim Final Rule and adopts it without change in the Final Rule.
This section of the Interim Final Rule permits parties to file petitions for reconsideration of a final decision and order within 14 days after service of the decision and order. The Bureau adopts the practice set forth in the SEC Rules, 17 CFR 201.470, pursuant to which no response to a petition for reconsideration will be filed unless requested by the Director, and the Bureau adds a provision providing that the Director will request such a response before granting any motion for reconsideration. This is intended to lessen the burden on prevailing parties while preserving their opportunity to be heard if the Director is considering granting a motion for reconsideration.
The Bureau received no comments on § 1081.406 of the Interim Final Rule and adopts it without change in the Final Rule.
Paragraph (a) of this section of the Interim Final Rule governs the effective date of the Director's final orders, other than consent orders. Consistent with section 1053(b) of the Dodd-Frank Act, orders to cease and desist and for other affirmative relief shall become effective 30 days after the date of service of the Director's final decision and order, unless stayed by the Director under paragraph (b) of this section.
Paragraph (b) of this section contains the procedures regarding stays of Bureau orders. Any party subject to a final order, other than a consent order, may apply to the Director for a stay of all or part of that order pending judicial review. Such a motion must be made within 30 days of service of the Director's final decision and order. A motion for a stay shall address the likelihood of the movant's success on appeal, whether the movant will suffer irreparable harm if a stay is not granted, the degree of injury to other parties if a stay is granted, and why the stay is in the public interest.
Finally, paragraph (d) of this section adopts the provision from the Uniform Rules, 12 CFR 19.41, providing that the commencement of proceedings for judicial review of a final decision and order of the Director does not, unless specifically ordered by the Director or a reviewing court, operate as a stay of any order issued by the Director.
The Bureau received no comments on § 1081.407 of the Interim Final Rule and adopts it in the Final Rule without change.
The Bureau promulgates the Final Rule pursuant to its authority to implement section 1053 of the Dodd-Frank Act, 12 U.S.C. 5563(e), as well as its general rulemaking authority to promulgate rules necessary or appropriate to carry out the Federal consumer financial laws, 12 U.S.C. 5512(b)(1).
In developing the Final Rule, the Bureau has considered the potential benefits, costs, and impacts and has consulted or offered to consult with the prudential regulators, the Department of Housing and Urban Development, the SEC, the Department of Justice, and the FTC before and after issuing the Interim Final Rule, including with regard to consistency with any prudential, market, or systemic objectives administered by such agencies.
The Dodd-Frank Act requires the Bureau to prescribe rules necessary to conduct hearings and adjudicatory proceedings. The Final Rule neither imposes obligations on consumers, nor is it expected to affect their access to consumer financial products or services.
The Final Rule is intended to provide an expeditious decision-making process, which will benefit both consumers and covered persons. The Final Rule adopts an affirmative disclosure approach to fact discovery, pursuant to which the Bureau will make available to respondents the information obtained by the Office of Enforcement from persons not employed by the Bureau prior to the institution of proceedings, in connection with the investigation leading to the institution of proceedings that is not otherwise privileged or protected from disclosure. This affirmative disclosure obligation substitutes for the traditional civil discovery process, which can be both time-consuming and expensive. This clear and efficient process for the conduct of adjudication proceedings benefits consumers by providing a systematic process for protecting them from unlawful behavior. At the same time, this process will afford covered persons with a cost-effective way to have their cases heard. The Final Rule is based upon, and drawn from, existing rules of the prudential regulators, the FTC, and the SEC. The Final Rule's similarity to existing rules should further reduce the expense of administrative adjudication for covered persons.
Further, the Final Rule has no unique impact on insured depository institutions or insured credit unions with less than $10 billion in assets described in section 1026(a) of the Dodd-Frank Act. Finally, the Final Rule does not have a unique impact on rural consumers.
A commenter stated that the four interim final rules that the Bureau promulgated together on July 28, 2011 failed to satisfy the rulemaking requirements under section 1022 of the Dodd-Frank Act. Specifically, the commenter stated that “the CFPB's analysis of the costs and benefits of its rules does not recognize the significant costs the CFPB imposes on covered persons.” The Bureau believes that it appropriately considered the benefits, costs, and impacts of the Interim Final Rule pursuant to section 1022 of the Dodd-Frank Act. Notably, the commenter did not identify any specific costs to covered persons imposed by the Rules of Practice for Adjudication Proceedings that are not discussed in Part C of the
As noted in publishing the Interim Final Rule, under the Administrative Procedure Act, 5 U.S.C. 553(b), notice and comment is not required for rules of agency organization, procedure, or practice. As discussed in the preamble to the Interim Final Rule, the Bureau confirms its finding that this is a procedural rule for which notice and comment is not required. In addition,
Because no notice of proposed rulemaking is required, the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601(2) do not apply. Finally, the Bureau has determined that this Final Rule does not impose any new recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval under 44 U.S.C. 3501
Administrative practice and procedure, Banking, Banks, Consumer protection, Credit, Credit unions, Law enforcement, National banks, Savings associations, Trade practices.
For the reasons set forth above, the Bureau of Consumer Financial Protection revises part 1081 to 12 CFR chapter X to read as follows:
Pub. L. 111-203, Title X.
This part prescribes rules of practice and procedure applicable to adjudication proceedings authorized by section 1053 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) to ensure or enforce compliance with the provisions of Title X of the Dodd-Frank Act, rules prescribed by the Bureau under Title X of the Dodd-Frank Act, and any other Federal law or regulation that the Bureau is authorized to enforce. These rules of practice do not govern the conduct of Bureau investigations, investigational hearings or other proceedings that do not arise from proceedings after a notice of charges.
To the extent practicable, consistent with requirements of law, the Bureau's policy is to conduct such adjudication proceedings fairly and expeditiously. In the conduct of such proceedings, the hearing officer and counsel for all parties shall make every effort at each stage of a proceeding to avoid delay. With the consent of the parties, the Director, at any time, or the hearing officer at any time prior to the filing of his or her recommended decision, may shorten any time limit prescribed by this part.
For the purposes of this part:
(a) Any term in the singular includes the plural, and the plural includes the singular, if such use would be appropriate;
(b) Any use of a masculine, feminine, or neutral gender encompasses all three, if such use would be appropriate;
(c) Unless context requires otherwise, a party's counsel of record, if any, may, on behalf of that party, take any action required to be taken by the party; and
(d) To the extent this part uses terms defined by section 1002 of the Dodd-Frank Act, such terms shall have the same meaning as set forth therein, unless defined differently by § 1081.103.
For the purposes of this part, unless explicitly stated to the contrary:
(a)
(b)
(1) To administer oaths and affirmations;
(2) To issue subpoenas, subpoenas
(3) To take depositions or cause depositions to be taken;
(4) To receive relevant evidence and to rule upon the admission of evidence and offers of proof;
(5) To regulate the course of a proceeding and the conduct of parties and their counsel;
(6) To reject written submissions that materially fail to comply with the requirements of this part, and to deny confidential status to documents and testimony without prejudice until a party complies with all relevant rules;
(7) To hold conferences for settlement, simplification of the issues, or any other proper purpose and require the attendance at any such conference of at least one representative of each party who has authority to negotiate concerning the resolution of issues in controversy;
(8) To inform the parties as to the availability of one or more alternative means of dispute resolution, and to encourage the use of such methods;
(9) To certify questions to the Director for his or her determination in accordance with the rules of this part;
(10) To consider and rule upon, as justice may require, all procedural and other motions appropriate in adjudication proceedings;
(11) To issue and file recommended decisions;
(12) To recuse himself or herself by motion made by a party or on his or her own motion;
(13) To issue such sanctions against parties or their counsel as may be necessary to deter repetition of sanctionable conduct or comparable conduct by others similarly situated, as provided for in this part or as otherwise necessary to the appropriate conduct of hearings and related proceedings, provided that no sanction shall be imposed before providing the sanctioned person an opportunity to show cause why no such sanction should issue; and
(14) To do all other things necessary and appropriate to discharge the duties of a presiding officer.
(a)
(b)
(c)
(2) Any party who has a reasonable, good faith basis to believe that a hearing officer has a personal bias, or is otherwise disqualified from hearing a case, may make a motion to the hearing officer that the hearing officer withdraw. The motion shall be accompanied by an affidavit setting forth the facts alleged to constitute grounds for disqualification. Such motion shall be filed at the earliest practicable time after the party learns, or could reasonably have learned, of the alleged grounds for disqualification. If the hearing officer does not disqualify himself or herself within ten days, he or she shall certify the motion to the Director pursuant to § 1081.211, together with any statement he or she may wish to have considered by the Director. The Director shall promptly determine the validity of the grounds alleged, either directly or on the report of another hearing officer appointed to conduct a hearing for that purpose, and shall either direct the reassignment of the matter or confirm the hearing officer's continued role in the matter.
(d)
The deadlines for action by the hearing officer established by §§ 1081.203, 1081.205, 1081.211, 1081.212, and 1081.400, or elsewhere in this part, confer no substantive rights on respondents.
(a)
(2)
(i) An individual may appear on his or her own behalf;
(ii) A member of a partnership may represent the partnership;
(iii) A duly authorized officer of a corporation, trust or association may represent the corporation, trust or association; and
(iv) A duly authorized officer or employee of any government unit, agency, or authority may represent that unit, agency, or authority.
(3)
(b)
(c)
(2) If for good cause shown, the Director believes that any attorney is not conforming to such standards, or that an attorney or counsel to a party has otherwise engaged in conduct warranting disciplinary action, the Director may issue an order requiring such person to show cause why he should not be suspended or disbarred from practice before the Bureau. The alleged offender shall be granted due opportunity to be heard in his or her own defense and may be represented by counsel. Thereafter, if warranted by the facts, the Director may issue against the attorney or counsel an order of reprimand, suspension, or disbarment.
(a)
(b)
(2) If a filing or submission of record is not signed, the hearing officer shall strike the filing or submission of record, unless it is signed promptly after the omission is called to the attention of the filer.
(c)
(d)
(a)
(b)
(1) That the counsel has personally and fully discussed the possibility of conflicts of interest with each such party and non-party; and
(2) That each such party and/or non-party waives any right it might otherwise have had to assert any known conflicts of interest or to assert any conflicts of interest during the course of the proceeding.
(a)
(i) An interested person not employed by the Bureau (including such person's counsel); and
(ii) The hearing officer handling the proceeding, the Director, or a decisional employee.
(2)
(3)
(b)
(1) No interested person not employed by the Bureau shall make or knowingly cause to be made to the Director, or to the hearing officer, or to any decisional employee, an ex parte communication; and
(2) The Director, the hearing officer, or any decisional employee shall not make or knowingly cause to be made to any interested person not employed by the Bureau any ex parte communication.
(c)
(d)
(2)
(e)
(a)
(b)
(1) Electronic transmission in accordance with guidance issued by the Office of Administrative Adjudication; or
(2) Any of the following methods if respondent demonstrates, in accordance with guidance issued by the Office of Administrative Adjudication, that electronic filing is not practicable:
(i) Personal delivery;
(ii) Delivery to a reliable commercial courier service or overnight delivery service; or
(iii) Mailing the papers through the U.S. Postal Service by First Class Mail, Registered Mail, Certified Mail or Express Mail.
(c)
(a)
(1) Set forth the name, address, telephone number, and email address of the counsel or party making the filing;
(2) Be double-spaced (except for single-spaced footnotes and single-spaced indented quotations) and printed or typewritten on 8
(3) Include at the head of the paper, or on a title page, a caption setting forth the title of the case, the docket number of the proceeding, and a brief descriptive title indicating the purpose of the paper;
(4) Be paginated with margins at least one inch wide; and
(5) If filed by other than electronic means, be stapled, clipped or otherwise fastened in a manner that lies flat when opened.
(b)
(c)
(d)
(e)
(f)
(1) A complete, sealed copy of the documents containing the materials as to which confidential treatment is sought, with the allegedly confidential material clearly marked as such, and with the first page of the document labeled “Under Seal.” If the movant seeks or has obtained a protective order against disclosure to other parties as well as the public, copies of the documents shall not be served on other parties; and
(2) An expurgated copy of the materials as to which confidential treatment is sought, with the allegedly confidential materials redacted. The redacted version shall indicate any omissions with brackets or ellipses, and its pagination and depiction of text on each page shall be identical to that of the sealed version.
(g)
(a)
(b)
(c)
(1) Transmitting the papers by electronic transmission where the persons so serving each other have consented to service by specified electronic transmission and provided the Bureau and the parties with notice of the means for service by electronic transmission (e.g., email address or facsimile number);
(2) Handing a copy to the person required to be served; or leaving a copy at the person's office with a clerk or other person in charge thereof, or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling or usual place of abode with some person of suitable age and discretion then residing therein;
(3) Mailing the papers through the U.S. Postal Service by First Cass Mail, Registered Mail, Certified Mail or Express Mail delivery addressed to the person; or
(4) Sending the papers through a third-party commercial courier service or express delivery service.
(d)
(1)
(ii)
(iii)
(iv)
(v)
(vi)
(2)
(a)
(b)
(1) In the case of personal service or same day commercial courier delivery, upon actual receipt by person served;
(2) In the case of overnight commercial delivery service, Express Mail delivery, First Class Mail, Registered Mail, or Certified Mail, upon deposit in or delivery to an appropriate point of collection; or
(3) In the case of electronic transmission, upon transmission.
(c)
(1) If service is made by First Class Mail, Registered Mail, or Certified Mail, add three calendar days to the prescribed period;
(2) If service is made by Express Mail or overnight delivery service, add one calendar day to the prescribed period; or
(3) If service is made by electronic transmission, add one calendar day to the prescribed period.
(a) Except as otherwise provided by law, the hearing officer may, in any proceeding before him or her, for good cause shown, extend the time limits prescribed by this part or by any notice or order issued in the proceedings. After appeal to the Director pursuant to § 1081.402, the Director may grant extensions of the time limits for good cause shown. Extensions may be granted on the motion of a party after notice and opportunity to respond is afforded all non-moving parties or on the Director's or the hearing officer's own motion, as appropriate.
(b)
(1) The length of the proceeding to date;
(2) The number of postponements, adjournments or extensions already granted;
(3) The stage of the proceedings at the time of the motion;
(4) The impact of the motion on the hearing officer's ability to complete the proceeding in the time specified by § 1081.400(a); and
(5) Any other matters as justice may require.
(c)
(d)
Respondents shall pay to witnesses subpoenaed for testimony or depositions on their behalf the same fees for attendance and mileage as are paid in the United States district courts in proceedings in which the United States is a party, provided that, in the case of a deposition subpoena addressed to a party, no witness fees or mileage need be paid. Fees for witnesses shall be tendered in advance by any respondent requesting the issuance of a subpoena, except that fees and mileage need not be tendered in advance where the Bureau is the party requesting the subpoena. The Bureau shall pay to witnesses subpoenaed for testimony or depositions on behalf of the Office of Enforcement the same fees for attendance and mileage as are paid in the United States district courts in proceedings in which the United States is a party, but the Bureau need not tender such fees in advance.
Nothing contained in this part limits in any manner the right of the Bureau to conduct any examination, inspection, or visitation of any person, to conduct or continue any form of investigation authorized by law, to collect information in order to monitor the market for risks to consumers in the offering or provision of consumer financial products or services, or to otherwise gather information in accordance with law.
Unless a court of competent jurisdiction, or the Director for good cause, so directs, if an interlocutory appeal or collateral attack is brought in any court concerning all or any part of an adjudication proceeding, the challenged adjudication proceeding shall continue without regard to the pendency of that court proceeding. No default or other failure to act as directed in the adjudication proceeding within the times prescribed in this part shall be excused based on the pendency before any court of any interlocutory appeal or collateral attack.
(b)
(c)
(1) Upon a finding that public disclosure will likely result in a clearly defined, serious injury to the party or third party requesting confidential treatment;
(2) After finding that the material constitutes sensitive personal information, as defined in § 1081.112(e);
(3) If all parties, including third parties to the extent their information is at issue, stipulate to the entry of a protective order; or
(4) Where public disclosure is prohibited by law.
(d)
(e)
(a)
(b)
(c)
(2) Any settlement offer shall be presented to the Director with a recommendation, except that, if the recommendation is unfavorable, the offer shall not be presented to the Director unless the person making the offer so requests.
(3) By submitting an offer of settlement, the person making the offer waives, subject to acceptance of the offer:
(i) All hearings pursuant to the statutory provisions under which the proceeding has been instituted;
(ii) The filing of proposed findings of fact and conclusions of law;
(iii) Proceedings before, and a recommended decision by, a hearing officer;
(iv) All post-hearing procedures;
(v) Judicial review by any court; and
(vi) Any objection to the jurisdiction of the Bureau under section 1053 of the Dodd-Frank Act.
(4) By submitting an offer of settlement the person further waives:
(i) Such provisions of this part or other requirements of law as may be construed to prevent any Bureau employee from participating in the preparation of, or advising the Director as to, any order, opinion, finding of fact, or conclusion of law to be entered pursuant to the offer; and
(ii) Any right to claim bias or prejudgment by the Director based on the consideration of or discussions concerning settlement of all or any part of the proceeding.
(5) If the Director rejects the offer of settlement, the person making the offer shall be notified of the Director's action and the offer of settlement shall be deemed withdrawn. The rejected offer shall not constitute a part of the record in any proceeding against the person making the offer, provided, however, that rejection of an offer of settlement does not affect the continued validity of waivers pursuant to paragraph (c)(4) of this section with respect to any discussions concerning the rejected offer of settlement.
(d)
It is the policy of the Bureau to cooperate with other governmental agencies to avoid unnecessary overlap or duplication of regulatory functions.
(a)
(b)
(1) The legal authority for the proceeding and for the Bureau's jurisdiction over the proceeding;
(2) A statement of the matters of fact and law showing that the Bureau is entitled to relief;
(3) A proposed order or prayer for an order granting the requested relief;
(4) The time and place of the hearing as required by law or regulation;
(5) The time within which to file an answer as required by law or regulation;
(6) That the answer shall be filed and served in accordance with subpart A of this part; and
(7) The docket number for the adjudication proceeding.
(c)
(d)
(e)
(i) A notice of dismissal before the respondent(s) serves an answer; or
(ii) A stipulation of dismissal signed by all parties who have appeared.
(2)
(a)
(b)
(c)
(d)
(2) A motion to set aside a default shall be made within a reasonable time, state the reasons for the failure to appear or defend, and specify the nature of the proposed defense in the proceeding. In order to prevent injustice and on such conditions as may be appropriate, the hearing officer, at any time prior to the filing of the recommended decision, or the Director, at any time, may for good cause shown set aside a default.
(e)
(i) Identifies any parent corporation, any publicly owned corporation owning ten percent or more of its stock, and any publicly owned corporation not a party to the proceeding that has a financial interest in the outcome of the proceeding and the nature of that interest; or
(ii) States that there are no such corporations.
(2)
(i) File the disclosure statement with its first appearance, pleading, motion, response, or other request addressed to the hearing officer or the Bureau; and
(ii) Promptly file a supplemental statement if any required information changes.
(a)
(b)
(a)
(b)
(1) Determination of the dates and location of the hearing, including, in proceedings under section 1053(b) of the Dodd-Frank Act, whether the hearing should commence later than 60 days after service of the notice of charges;
(2) Simplification and clarification of the issues;
(3) Amendments to pleadings;
(4) Settlement of any or all issues;
(5) Production of documents as set forth in § 1081.206 and of witness statements as set forth in § 1081.207, and prehearing production of documents in response to subpoenas
(6) Whether or not the parties intend to move for summary disposition of any or all issues;
(7) Whether the parties intend to seek the deposition of witnesses pursuant to § 1081.209;
(8) A schedule for the exchange of expert reports and the taking of expert depositions, if any; and
(9) Such other matters as may aid in the orderly disposition of the proceeding.
(c)
(d)
(e)
(f)
(a)
(2) In the event of consolidation under paragraph (a)(1) of this section, appropriate adjustment to the prehearing schedule may be made to avoid unnecessary expense, inconvenience, or delay.
(b)
(1) Undue prejudice or injustice to the moving party would result from not severing the proceeding; and
(2) Such undue prejudice or injustice would outweigh the interests of judicial economy and expedition in the complete and final resolution of the proceeding.
(a)
(b)
(2) All written motions must state with particularity the relief sought and must be accompanied by a proposed order.
(3) No oral argument may be held on written motions except as otherwise directed by the hearing officer. Written memoranda, briefs, affidavits or other relevant material or documents may be filed in support of or in opposition to a motion.
(c)
(d)
(2) Reply briefs, if any, may be filed within three days after service of the response.
(3) The failure of a party to oppose a written motion or an oral motion made on the record is deemed consent by that party to the entry of an order substantially in the form of the order accompanying the motion.
(e)
(f)
(g)
(h)
(i)
For purposes of this section, the term
(a)
(i) Any documents turned over in response to civil investigative demands or other written requests to provide documents or to be interviewed issued by the Office of Enforcement;
(ii) All transcripts and transcript exhibits; and
(iii) Any other documents obtained from persons not employed by the Bureau.
(2) In addition, the Office of Enforcement shall make available for inspection and copying by any respondent:
(i) Each civil investigative demand or other written request to provide documents or to be interviewed issued by the Office of Enforcement in connection with the investigation leading to the institution of proceedings; and
(ii) Any final examination or inspection reports prepared by any other Office of the Bureau if the Office of Enforcement either intends to introduce any such report into evidence or to use any such report to refresh the recollection of, or impeach, any witness.
(3) Nothing in paragraph (a) of this section shall limit the right of the Office of Enforcement to make available any other document, or shall limit the right of a respondent to seek access to or production pursuant to subpoena of any other document, or shall limit the authority of the hearing officer to order the production of any document pursuant to subpoena.
(4) Nothing in paragraph (a) of this section shall require the Office of Enforcement to produce a final examination or inspection report prepared by any other Office of the Bureau or any other government agency to a respondent who is not the subject of that report.
(b)
(i) The document is privileged;
(ii) The document is an internal memorandum, note or writing prepared by a person employed by the Bureau or another government agency, other than an examination or supervision report as specified in paragraph (a)(2)(ii) of this section, or would otherwise be subject to the work product doctrine and will not be offered in evidence;
(iii) The document was obtained from a domestic or foreign governmental entity and is either not relevant to the resolution of the proceeding or was provided on condition that the information not be disclosed;
(iv) The document would disclose the identity of a confidential source;
(v) Applicable law prohibits the disclosure of the document; or
(vi) The hearing officer grants leave to withhold a document or category of documents as not relevant to the subject matter of the proceeding or otherwise, for good cause shown.
(2) Nothing in paragraph (b)(1) of this section authorizes the Office of Enforcement in connection with an adjudication proceeding to withhold material exculpatory evidence in the possession of the Office that would otherwise be required to be produced pursuant to paragraph (a) of this section.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(i) The disclosure was inadvertent;
(ii) The holder of the privilege or protection took reasonable steps to prevent disclosure; and
(iii) The holder promptly took reasonable steps to rectify the error, including notifying any party that received the information or communication of the claim and the basis for it.
(2) After being notified, the receiving party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the hearing officer under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
(3) The disclosure of privileged or protected information or communications by any party during an adjudication proceeding shall waive the privilege or protection, with respect to other parties to the proceeding, as to undisclosed information or communications only if:
(i) The waiver is intentional;
(ii) The disclosed and undisclosed information or communications concern the same subject matter; and
(iii) They ought in fairness to be considered together.
(a)
(b)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(2)
(i)
(a)
(i) The witness will be unable to attend or may be prevented from attending the hearing because of age, sickness, or infirmity, or will otherwise be unavailable;
(ii) The witness's unavailability was not procured or caused by the subpoenaing party;
(iii) The testimony is reasonably expected to be material; and
(iv) Taking the deposition will not result in any undue burden to any other party and will not cause undue delay of the proceeding.
(2) In addition to making a showing as required by paragraph (a)(1) of this section, the request for a deposition subpoena must contain a proposed deposition subpoena and a brief statement showing the general relevance and reasonableness of the scope of testimony and documents sought, and the time and place for taking the deposition. Any request to record the deposition by audio-visual means must be made in the request for a deposition subpoena.
(3) Any requested deposition subpoena that sets forth a valid basis for its issuance must be promptly issued, unless the hearing officer on his or her own motion requires a written response or requires attendance at a conference concerning whether the requested subpoena should be issued. However, where it appears to the hearing officer that the deposition subpoena sought may be unreasonable, oppressive, excessive in scope, or unduly burdensome, he or she may, in his or her discretion, as a condition precedent to the issuance of the deposition subpoena, require the person seeking the deposition subpoena to show further the general relevance and reasonable scope of the testimony or other evidence sought. If after consideration of all the circumstances, the hearing officer determines that the deposition subpoena or any of its terms is unreasonable, oppressive, excessive in scope, or unduly burdensome, he or she may refuse to issue the deposition subpoena, or issue it only upon such conditions as fairness requires. In making the foregoing determination, the hearing officer may inquire of the other participants whether they will stipulate to the facts sought to be proved.
(4) Unless the hearing officer orders otherwise, no deposition under this section shall be taken on fewer than 14 days' notice to the witness and all parties.
(b)
(c)
(d)
(e)
(f)
(2)
(g)
(2) The witness being deposed may have an attorney present during the deposition.
(3) Each witness testifying pursuant to a deposition subpoena must be duly sworn, and each party shall have the right to examine the witness. Objections to questions or documents must be in short form, stating the grounds for the objection. Objections to questions of evidence shall be noted by the deposition officer upon the deposition, but a deposition officer other than the hearing officer shall not have the power to decide on the competency, materiality, or relevance of evidence. Failure to object to questions or documents is not deemed a waiver except where the ground for the objection might have been avoided if the objection had been timely presented. All questions, answers, and objections must be recorded.
(4) The deposition must be subscribed by the witness, unless the parties and the witness, by stipulation, have waived the signing, or the witness is ill, cannot be found, or has refused to sign. If the deposition is not subscribed by the witness, the court reporter taking the deposition shall certify that the transcript is a true and complete transcript of the deposition.
(5) The original deposition transcript and exhibits shall be filed with the Office of Administrative Adjudication. The cost of the transcript shall be paid by the party requesting the deposition. A copy of the deposition shall be available to the deponent and each party for purchase at prescribed rates.
(h)
(a) At a date set by the hearing officer at the scheduling conference, each party shall serve the other with a report prepared by each of its expert witnesses. Each party shall serve the other parties with a list of any rebuttal expert witnesses and a rebuttal report prepared by each such witness not later than 28 days after the deadline for service of expert reports, unless another date is set by the hearing officer. A rebuttal report shall be limited to rebuttal of matters set forth in the expert report for which it is offered in rebuttal. If material outside the scope of fair rebuttal is presented, a party may file a motion not later than five days after the deadline for service of rebuttal reports, seeking appropriate relief with the hearing officer, including striking all or part of the report, leave to submit a surrebuttal report by the party's own experts, or leave to call a surrebuttal witness and to submit a surrebuttal report by that witness.
(b) No party may call an expert witness at the hearing unless he or she has been listed and has provided reports as required by this section, unless otherwise directed by the hearing officer at a scheduling conference. Each side will be limited to calling at the hearing five expert witnesses, including any rebuttal or surrebuttal expert witnesses. A party may file a motion seeking leave to call additional expert witnesses due to extraordinary circumstances.
(c) Each report shall be signed by the expert and contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data, materials, or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored or co-authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified or sought to testify as an expert at trial or hearing, or by deposition within the preceding four years. A rebuttal or surrebuttal report need not include any information already included in the initial report of the witness.
(d) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Unless otherwise ordered by the hearing officer, a deposition of any expert witness shall be conducted after the disclosure of a report prepared by the witness in accordance with paragraph (a) of this section, and at least seven days prior to the deadline for submission of rebuttal expert reports. A deposition of an expert witness shall be completed no later than 14 days before the hearing unless otherwise ordered by the hearing officer. No expert deposition shall exceed eight hours on the record, absent agreement of the parties or an order of the hearing officer for good cause shown. Expert depositions shall be conducted pursuant to the procedures set forth in § 1081.209(g).
(e) A party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for the hearing and who is not listed as a witness for the hearing. A party may not discover drafts of any report required by this section, regardless of the form in which the draft is recorded, or any communications between another party's attorney and any of that other party's experts, regardless of the form of the communications, except to the extent that the communications:
(1) Relate to compensation for the testifying expert's study or testimony;
(2) Identify facts or data that the other party's attorney provided and that the testifying expert considered in forming the opinions to be expressed; or
(3) Identify assumptions that the other party's attorney provided and that the testifying expert relied on in forming the opinions to be expressed.
(f) The hearing officer shall have the discretion to dispense with the requirement of expert discovery in appropriate cases.
(a)
(b)
(c)
(1) The ruling or order would compel testimony of Bureau officers or employees, or those from another governmental agency, or the production of documentary evidence in the custody of the Bureau or another governmental agency;
(2) The ruling or order involves a motion for disqualification of the hearing officer pursuant to § 1081.105(c)(2);
(3) The ruling or order suspended or barred an individual from appearing before the Bureau pursuant to § 1081.107(c); or
(4) Upon motion by a party, the hearing officer is of the opinion that:
(i) The ruling or order involves a controlling question of law as to which there is substantial ground for difference of opinion; and
(ii) An immediate review of the ruling or order is likely to materially advance the completion of the proceeding or subsequent review will be an inadequate remedy.
(d)
(e)
(f)
(a)
(b)
(c)
(1) There is no genuine issue as to any material fact; and
(2) The moving party is entitled to a decision in its favor as a matter of law.
(d)
(2) A motion for summary disposition must be accompanied by a statement of the material facts as to which the moving party contends there is no genuine issue. Such motion must be supported by documentary evidence, which may take the form of admissions in pleadings, stipulations, depositions, investigatory depositions, transcripts, affidavits and any other evidentiary materials that the moving party contends support his or her position. The motion must also be accompanied by a brief containing the points and authorities in support of the contention of the moving party. Any party opposing a motion for summary disposition must file a statement setting forth those material facts as to which he or she contends a genuine dispute exists. Such opposition must be supported by evidence of the same type as may be submitted in support of a motion for summary disposition and a brief containing the points and authorities in support of the contention that summary disposition would be inappropriate.
(3) Any affidavit or declaration submitted in support of or in opposition to a motion for summary disposition shall set forth such facts as would be admissible in evidence, shall show affirmatively that the affiant is competent to testify to the matters stated therein, and must be signed under oath and penalty of perjury.
(e)
(f)
(g)
(h)
If on a motion for summary disposition under § 1081.212 a decision is not rendered upon the whole case or for all the relief asked and a hearing is necessary, the hearing officer shall issue an order specifying the facts that appear without substantial controversy and directing further proceedings in the action. The facts so specified shall be deemed established.
(a)
(1) Identification of potential witnesses and limitation on the number of witnesses;
(2) The exchange of any prehearing materials including witness lists, statements of issues, exhibits, and any other materials;
(3) Stipulations, admissions of fact, and the contents, authenticity, and admissibility into evidence of documents;
(4) Matters of which official notice may be taken; and
(5) Whether the parties intend to introduce prior sworn statements of witnesses as set forth in § 1081.303(h).
(b)
(c)
(a) Within the time set by the hearing officer, but in no case later than ten days before the start of the hearing, each party shall serve on every other party:
(1) A prehearing statement, which shall include an outline or narrative summary of its case or defense, and the legal theories upon which it will rely;
(2) A final list of witnesses to be called to testify at the hearing, including the name and address of each witness and a short summary of the expected testimony of each witness;
(3) Any prior sworn statements that a party intends to admit into evidence pursuant to § 1081.303(h);
(4) A list of the exhibits to be introduced at the hearing along with a copy of each exhibit; and
(5) Any stipulations of fact or liability.
(b)
(c)
(a)
(1) A motion for leave to file the brief has been granted;
(2) The brief is accompanied by written consent of all parties;
(3) The brief is filed at the request of the Director or the hearing officer, as appropriate; or
(4) The brief is presented by the United States or an officer or agency thereof, or by a State or a political subdivision thereof.
(b)
(c)
(d)
(e)
All hearings in adjudication proceedings shall be public unless a confidentiality order is entered by the hearing officer pursuant to § 1081.119 or unless otherwise ordered by the Director on the grounds that holding an open hearing would be contrary to the public interest.
Failure of a respondent to appear in person or by a duly authorized counsel at the hearing constitutes a waiver of respondent's right to a hearing and may be deemed an admission of the facts as alleged and consent to the relief sought in the notice of charges. Without further proceedings or notice to the respondent, the hearing officer shall file a recommended decision containing findings of fact and addressing the relief sought in the notice of charges.
All hearings shall be conducted in a fair, impartial, expeditious, and orderly manner. Enforcement counsel shall present its case-in-chief first, unless otherwise ordered by the hearing officer, or unless otherwise expressly specified by law or regulation. Enforcement counsel shall be the first party to present an opening statement and a closing statement, and may make a rebuttal statement after the respondent's closing statement. If there are multiple respondents, respondents may agree among themselves as to their order of presentation of their cases, but if they do not agree, the hearing officer shall fix the order.
(a)
(b)
(2) Evidence, even if relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues; if the evidence would be misleading; or based on considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
(3) Evidence that constitutes hearsay may be admitted if it is relevant, material, and bears satisfactory indicia of reliability so that its use is fair. Hearsay is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted. If otherwise meeting the standards for admissibility described in this section, transcripts of depositions, investigational hearings, prior testimony in Bureau or other proceedings, and any other form of hearsay shall be admissible and shall not be excluded solely on the ground that they are or contain hearsay.
(4) Evidence that would be admissible under the Federal Rules of Evidence is admissible in a proceeding conducted pursuant to this part. Evidence that would be inadmissible under the Federal Rules of Evidence may not be deemed or ruled to be inadmissible in a proceeding conducted pursuant to this part solely on that basis.
(c)
(d)
(2) Subject to the requirements of paragraph (b) of this section, any document, including a report of examination, supervisory activity, inspection or visitation, prepared by the Bureau, a prudential regulator, as that term is defined in section 1002(24) of the Dodd-Frank Act, or by a State regulatory agency, is presumptively admissible either with or without a sponsoring witness.
(3) Witnesses may use existing or newly created charts, exhibits, calendars, calculations, outlines or other graphic material to summarize, illustrate, or simplify the presentation of testimony. Such materials may, subject to the hearing officer's discretion, be used with or without being admitted into evidence.
(4) As respondents are in the best position to determine the nature of documents generated by such respondents and which come from their own files, the burden of proof is on the respondent to introduce evidence to rebut a presumption that such documents are authentic and kept in the regular course of business.
(e)
(2) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record. Rejected exhibits, adequately marked for identification, shall be retained pursuant to § 1081.306(b) so as to be available for consideration by any reviewing authority.
(3) Failure to object to admission of evidence or to any ruling constitutes a waiver of the objection.
(f)
(2) Unless the hearing officer directs otherwise, all stipulations of fact and law previously agreed upon by the parties, and all documents, the admissibility of which have been previously stipulated, will be admitted into evidence upon commencement of the hearing.
(g)
(2) A party is entitled to present its case or defense by sworn oral testimony and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as, in the discretion of the hearing officer, may be required for a full and true disclosure of the facts.
(3) An adverse party, or an officer, agent, or employee thereof, and any witness who appears to be hostile, unwilling, or evasive, may be interrogated by leading questions and may also be contradicted and impeached by the party calling him or her.
(4) The hearing officer shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(i) Make the interrogation and presentation effective for the ascertainment of the truth;
(ii) Avoid needless consumption of time; and
(iii) Protect witnesses from harassment or undue embarrassment.
(5) The hearing officer may permit a witness to appear at a hearing via video conference or telephone for good cause shown.
(h)
(1) The witness is dead;
(2) The witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the prior sworn statement;
(3) The witness is unable to attend or testify because of age, sickness, infirmity, imprisonment or other disability;
(4) The party offering the prior sworn statement has been unable to procure the attendance of the witness by subpoena; or
(5) In the discretion of the hearing officer, it would be desirable, in the interests of justice, to allow the prior sworn statement to be used. In making this determination, due regard shall be given to the presumption that witnesses will testify orally in an open hearing. If the parties have stipulated to accept a prior sworn statement in lieu of live testimony, consideration shall also be given to the convenience of the parties in avoiding unnecessary expense.
(a)
(b)
(c)
(a)
(2) Proposed findings and conclusions must be supported by citation to any relevant authorities and by page references to any relevant portions of the record. A post-hearing brief may be filed in support of proposed findings and conclusions, either as part of the same document or in a separate document.
(b)
(c)
(a)
(1) The notice of charges, the answer, and any amendments thereto;
(2) Each motion, submission, or other paper filed in the proceedings, and any amendments and exceptions to or regarding them;
(3) Each stipulation, transcript of testimony, and any document or other item admitted into evidence;
(4) Any transcript of a conference or hearing before the hearing officer;
(5) Any amicus briefs filed pursuant to § 1081.216;
(6) With respect to a request to disqualify a hearing officer or to allow the hearing officer's withdrawal under § 1081.105(c), each affidavit or transcript of testimony taken and the decision made in connection with the request;
(7) All motions, briefs, and other papers filed on interlocutory appeal;
(8) All proposed findings and conclusions;
(9) Each written order issued by the hearing officer or Director; and
(10) Any other document or item accepted into the record by the hearing officer.
(b)
(c)
(a)
(b)
(c)
(2) Consistent with paragraph (a) of this section, when more than one claim for relief is presented in an adjudication proceeding, or when multiple parties are involved, the hearing officer may direct the entry of a recommended decision as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of a recommended decision.
(d)
(e)
(2) Except for the correction of clerical errors or pursuant to an order of remand from the Director, the jurisdiction of the hearing officer is terminated upon the filing of his or her recommended decision with respect to those issues decided pursuant to paragraph (c) of this section.
(f)
(a)
(b)
(a)
(2)
(b)
(c)
(a)
(b)
(a)
(b)
(a) Upon appeal from or upon further review of a recommended decision, the Director will consider such parts of the record as are cited or as may be necessary to resolve the issues presented and, in addition, will, to the extent necessary or desirable, exercise all powers which he or she could have exercised if he or she had made the recommended decision. In proceedings before the Director, the record shall consist of all items part of the record below in accordance with § 1081.306; any notices of appeal or order directing review; all briefs, motions, submissions, and other papers filed on appeal or review; and the transcript of any oral argument held. Review by the Director of a recommended decision may be limited to the issues specified in the notice(s) of appeal or the issues, if any, specified in the order directing further briefing. On notice to all parties, however, the Director may, at any time prior to issuance of his or her decision, raise and determine any other matters that he or she deems material, with opportunity for oral or written argument thereon by the parties.
(b) Decisional employees may advise and assist the Director in the consideration and disposition of the case.
(c) In rendering his or her decision, the Director will affirm, adopt, reverse, modify, set aside, or remand for further proceedings the recommended decision and will include in the decision a statement of the reasons or basis for his or her actions and the findings of fact upon which the decision is predicated.
(d) At the expiration of the time permitted for the filing of reply briefs with the Director, the Office of Administrative Adjudication will notify the parties that the case has been submitted for final Bureau decision. The Director will issue and the Office of Administrative Adjudication will serve the Director's final decision and order within 90 days after such notice, unless within that time the Director orders that the adjudication proceeding or any aspect thereof be remanded to the hearing officer for further proceedings.
(e) Copies of the final decision and order of the Director shall be served upon each party to the proceeding, upon other persons required by statute, and, if directed by the Director or required by statute, upon any appropriate State or Federal supervisory authority. The final decision and order will also be published on the Bureau's Web site or as otherwise deemed appropriate by the Bureau.
Within 14 days after service of the Director's final decision and order, any party may file with the Director a petition for reconsideration, briefly and specifically setting forth the relief desired and the grounds in support thereof. Any petition filed under this section must be confined to new questions raised by the final decision or final order and upon which the petitioner had no opportunity to argue, in writing or orally, before the Director. No response to a petition for reconsideration shall be filed unless requested by the Director, who will request such response before granting any petition for reconsideration. The filing of a petition for reconsideration shall not operate to stay the effective date of the final decision or order or to toll the running of any statutory period affecting such decision or order unless specifically so ordered by the Director.
(a) Other than consent orders, which shall become effective at the time specified therein, an order to cease and desist or for other affirmative action under section 1053(b) of the Dodd-Frank Act becomes effective at the expiration of 30 days after the date of service pursuant to § 1081.113(d)(2), unless the Director agrees to stay the effectiveness of the order pursuant to this section.
(b) Any party subject to a final decision and order, other than a consent order, may apply to the Director for a stay of all or part of that order pending judicial review.
(c) A motion for stay shall state the reasons a stay is warranted and the facts relied upon, and shall include supporting affidavits or other sworn statements, and a copy of the relevant portions of the record. The motion shall address the likelihood of the movant's success on appeal, whether the movant will suffer irreparable harm if a stay is not granted, the degree of injury to other parties if a stay is granted, and why the stay is in the public interest.
(d) A motion for stay shall be filed within 30 days of service of the order on the party. Any party opposing the motion may file a response within five days after receipt of the motion. The movant may file a reply brief, limited to new matters raised by the response, within three days after receipt of the response.
(e) The commencement of proceedings for judicial review of a final decision and order of the Director does not, unless specifically ordered by the Director or a reviewing court, operate as a stay of any order issued by the Director. The Director may, in his or her discretion, and on such terms as he or she finds just, stay the effectiveness of all or any part of an order pending a final decision on a petition for judicial review of that order.
Bureau of Consumer Financial Protection.
Final rule.
After considering the public comments on its interim final rule for the Rules Relating to Investigations, the Bureau of Consumer Financial Protection (Bureau), pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act), is making revisions to its procedures for investigations under section 1052 of the Dodd-Frank Act.
The final rule is effective June 29, 2012.
Peter G. Wilson, Office of the General Counsel, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552, (202) 435-7585.
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) was signed into law on July 21, 2010. Title X of the Dodd-Frank Act established the Bureau of Consumer Financial Protection (Bureau) to regulate the offering and provision of consumer financial products or services under the Federal consumer financial laws. The Dodd-Frank Act transferred to the Bureau the consumer financial protection functions formerly carried out by the Federal banking agencies, as well as certain authorities formerly carried out by the Department of Housing and Urban Development (HUD) and the Federal Trade Commission (FTC). As required by section 1062 of the Dodd-Frank Act, 12 U.S.C. 5582, the Secretary of the Treasury selected a
The Dodd-Frank Act authorizes the Bureau to conduct investigations to ascertain whether any person is or has been engaged in conduct that, if proved, would constitute a violation of any provision of Federal consumer financial law. Section 1052 of the Dodd-Frank Act sets forth the parameters that govern these investigations. 12 U.S.C. 5562. Section 1052 became effective immediately upon transfer on July 21, 2011 and did not require rules to implement its provisions. On July 28, 2011, the Bureau issued the interim final rule for the Rules Relating to Investigations (Interim Final Rule) to provide parties involved in Bureau investigations with clarification on how to comply with the statutory requirements relating to Bureau investigations.
Consistent with section 1052 of the Dodd-Frank Act, the final rule for the Rules Relating to Investigations (Final Rule) describes a number of Bureau policies and procedures that apply in an investigational, nonadjudicative setting. Among other things, the Final Rule sets forth (1) the Bureau's authority to conduct investigations, and (2) the rights of persons from whom the Bureau seeks to compel information in investigations.
Like the Interim Final Rule, the Final Rule is modeled on investigative procedures of other law enforcement agencies. For guidance, the Bureau reviewed the procedures currently used by the FTC, the Securities and Exchange Commission (SEC), and the prudential regulators, as well as the FTC's recently proposed amendments to its nonadjudicative procedures. In light of the similarities between section 1052 of the Dodd-Frank Act and section 20 of the Federal Trade Commission Act (FTC Act), 15 U.S.C. 41
The Final Rule lays out the Bureau's authority to conduct investigations before instituting judicial or administrative adjudicatory proceedings under Federal consumer financial law. The Final Rule authorizes the Director, the Assistant Director of the Office of Enforcement, and the Deputy Assistant Directors of the Office of Enforcement to issue civil investigative demands (CIDs) for documentary material, tangible things, written reports, answers to questions, or oral testimony. The demands may be enforced in district court by the Director, the General Counsel, or the Assistant Director of the Office of Enforcement. The Final Rule also details the authority of the Bureau's investigators to conduct investigations and hold investigational hearings pursuant to civil investigative demands for oral testimony.
Furthermore, the Final Rule sets forth the rights of persons from whom the Bureau seeks to compel information in an investigation. Specifically, the Final Rule describes how such persons should be notified of the purpose of the Bureau's investigation. It also details the procedures for filing a petition for an order modifying or setting aside a CID, which the Director is authorized to rule upon. And it describes the process by which persons may obtain copies of or access to documents or testimony they have provided in response to a civil investigative demand. In addition, the Final Rule describes a person's right to counsel at investigational hearings.
As noted above, section 1052 of the Dodd-Frank Act outlines how the Bureau will conduct investigations and describes the rights of persons from whom the Bureau seeks information in investigations. This section became effective immediately upon the designated transfer date, July 21, 2011, without any requirement that the Bureau first issue procedural rules. Nevertheless, the Bureau believes that the legislative purpose of section 1052 will be furthered by the issuance of rules that specify the manner in which persons can comply with its provisions.
Section 1022 of the Dodd-Frank Act authorizes the Director to prescribe rules as may be necessary or appropriate for the Bureau to administer and carry out the purposes and objectives of Federal consumer financial laws and to prevent evasion of those laws. 12 U.S.C. 5512. The Bureau believes that the Final Rule will effectuate the purpose of section 1052 and facilitate compliance with Bureau investigations.
After publication of the Interim Final Rule on July 28, 2011, the Bureau accepted public comments until September 26, 2011. During the comment period, the Bureau received seven comments. Two of the comments were submitted by individual consumers. Four trade associations and a mortgage company also submitted comments. The trade associations represent credit unions, banks, consumer credit companies, members of the real estate finance industry, and other financial institutions.
The commenters generally support the Interim Final Rule. Most sections of the Interim Final Rule received no comment and are being finalized without change. The comments did, however, contain questions and recommendations for the Bureau.
Several of the commenters expressed concern that the Interim Final Rule appeared to provide staff-level Bureau employees with unchecked authority to initiate investigations and issue CIDs, or that the Interim Final Rule otherwise did not provide sufficient oversight for particular actions.
A number of commenters expressed concern about sections of the Interim Final Rule that relate to CIDs. One trade association recommended that a statement of “the purpose and scope” of a Bureau investigation—in addition to a notification of the nature of the conduct constituting the alleged violation under investigation and the applicable provisions of law—be included in CIDs. A commenter suggested that the Bureau require a conference between CID recipients and the Assistant Director of the Office of Enforcement to negotiate the terms of compliance with the demand. Three of the trade associations noted concern with the statement that extensions of time are disfavored for petitions to modify or set aside CIDs. Two commenters questioned who would rule on such petitions without a confirmed Director. One trade association commented that witnesses should be permitted to object to questions demanding information outside of the scope of the investigation during an investigational hearing pursuant to a CID for oral testimony.
A number of commenters expressed concern about maintaining the confidentiality of demand material, sharing information with other State and Federal agencies, and the duties of the custodians of those materials. For example, one trade association and the mortgage company recommended that investigations should remain confidential in all circumstances. Another trade association asserted that the Bureau is not permitted to engage in joint investigations with State attorneys general.
The Bureau reviewed all of the comments on its Interim Final Rule thoroughly and addresses the significant issues they raise herein. Although most sections of the Interim Final Rule received no comment and are being finalized without change, the Bureau has made several changes to the Interim Final Rule based on the comments it received. The comments and these
Some comments on the Interim Final Rule were not directed at a specific section but rather concerned issues of general applicability. The Bureau addresses those comments in this section and addresses comments related to specific sections of the Interim Final Rule in part VI.
One commenter asked the Bureau to specify who would rule on petitions to set aside or modify CIDs while the Bureau lacked a Director. This commenter also asked who would review requests to the Attorney General under § 1080.12 for authority to immunize witnesses and to order them to testify or provide other information. The President appointed a Director of the Bureau on January 4, 2012. Therefore, both questions posed by this commenter are moot. The Director or any official to whom the Director has delegated his authority pursuant to 12 U.S.C. 5492(b) will rule on petitions to set aside or modify CIDs. Furthermore, the Bureau has revised § 1080.12 to clarify that only the Director has the authority to request approval from the Attorney General for the issuance of an order immunizing witnesses.
A commenter asserted that section 1052(c)(1) of the Dodd-Frank Act prohibits the Bureau from issuing CIDs after the institution of any proceedings under Federal consumer financial laws, including proceedings initiated by a State or a private party. The commenter argued that a CID should be accompanied by a certification that the demand will have no bearing on any ongoing proceeding. Section 1052(c)(1) provides, in relevant part, that “the Bureau may, before the institution of any proceedings under the Federal consumer financial law, issue in writing, and cause to be served upon such person, a civil investigative demand.” The language “before the institution of any proceeding under Federal consumer financial law” refers to the institution of proceedings by the Bureau. It does not limit the Bureau's authority to issue CIDs based upon the commencement of a proceeding by other parties.
Another commenter requested that the Bureau exempt all credit unions from Bureau investigations. The Bureau believes that granting an exemption from the Bureau's enforcement authority through the Final Rule would be inappropriate and that there is an insufficient record to support such an exemption.
A commenter recommended that covered persons be allowed to recover attorneys' fees and costs incurred by defending against an investigation that is shown to be without merit. The Dodd-Frank Act does not provide the right to recover fees and costs by defending against an investigation. Further, as explained below, the Bureau believes that the procedures for petitioning to modify or set aside a CID set forth in § 1080.6(d) of the Interim Final Rule (now 1080.6(e) of the Final Rule) provide sufficient protections to a recipient of a demand it believes lacks merit.
This section describes the scope of the Interim Final Rule. It makes clear that these rules only apply to investigations under section 1052 of the Dodd-Frank Act. The Bureau received no comment on § 1080.1 of the Interim Final Rule and is adopting it as the Final Rule without change.
This section of the Interim Final Rule defines several terms used throughout the rules. Many of these definitions also may be found in section 1051 of the Dodd-Frank Act.
A commenter questioned the breadth of the definition of the term “Assistant Director of the Division of Enforcement.” The commenter argued that because that term was defined to include “any Bureau employee to whom the Assistant Director of the Division of Enforcement has delegated authority to act under this part,” the Interim Final Rule could give Bureau employees inappropriately broad authority to take certain actions, such as issuing CIDs.
The Bureau has revised the Final Rule in response to these comments. The Final Rule identifies those with authority to take particular actions under each section of the Final Rule. Sections 1080.4 (initiating and conducting investigations) and 1080.6 (civil investigative demands) of the Final Rule clarify that the authority to initiate investigations and issue CIDs cannot be delegated by the identified officials. The Final Rule also changes the defined term “Division of Enforcement” to “Office of Enforcement” to reflect the Bureau's current organizational structure.
This section of the Interim Final Rule states the Bureau's policy of pursuing investigations that are in the public interest. Section 1080.3 is consistent with the Bureau's mission to protect consumers by investigating potential violations of Federal consumer financial law. The Bureau received no comments on § 1080.3 of the Interim Final Rule and is adopting it as the Final Rule without change.
This section of the Interim Final Rule explains that Bureau investigators are authorized to conduct investigations pursuant to section 1052 of the Dodd-Frank Act.
A commenter observed that this section of the Interim Final Rule did not explicitly provide a procedure for senior agency officials to authorize the opening of an investigation. The commenter argued that only senior agency officials should decide whether to initiate investigations. The commenter questioned whether staff-level employees could open investigations and issue CIDs without sufficient supervision, and noted that the FTC's analogous rule specifically lists the senior officials to whom the Commission has delegated, without power of redelegation, the authority to initiate investigations.
A commenter also expressed concern that the FTC's analogous rule explicitly provides that FTC investigators must comply with the laws of the United States and FTC regulations. According to the commenter, such language is necessary to ensure that the Bureau complies with the Right to Financial Privacy Act (RFPA) to the extent that statute applies to the Bureau. The commenter also believes that this language is needed to guard against investigations undertaken for what the commenter characterized as the impermissible purpose of aiding State attorneys general or State regulators. The commenter suggested that the Bureau add a statement to this section of the Interim Final Rule similar to the FTC's rule requiring compliance with Federal law and agency regulations.
The Final Rule clarifies that only the Assistant Director or any Deputy Assistant Director of the Office of Enforcement has the authority to initiate investigations. The Bureau has significant discretion to determine whether and when to open an investigation, and the public benefits from a process whereby the Bureau can open and close investigations efficiently. But the Bureau did not intend its rules to be interpreted so broadly as to suggest that any staff-level employee could unilaterally open an investigation or issue a CID. The Final
This section of the Interim Final Rule specifies that a person compelled to provide information to the Bureau or to testify in an investigational hearing must be advised of the nature of the conduct constituting the alleged violation under investigation and the applicable provisions of law. This section of the Interim Final Rule implements the requirements for CIDs described in section 1052(c)(2) of the Dodd-Frank Act.
Commenters noted that although the Dodd-Frank Act and the FTC Act both require CIDs to state “the nature of the conduct constituting the alleged violation which is under investigation and the provision of law applicable to such violation,” the two agencies' implementing regulations on this topic differ. Both agencies' regulations require a statement of the nature of the conduct at issue and the relevant provisions of law, but the FTC rule also requires that the recipient of the CID be advised of “the purpose and scope” of the investigation. Commenters argued that the Bureau should add this phrase to its rule because excluding it would lead to requests for materials outside the scope of an investigation. One commenter argued that only senior agency officials should authorize investigations to ensure that CIDs are relevant to the purpose and scope of the Bureau's investigations.
The language in § 1080.5 of the Interim Final Rule mirrors the language of the Dodd-Frank Act, which provides that “[e
The Bureau therefore adopts this section of the Interim Final Rule as the Final Rule without change.
This section of the Interim Final Rule lays out the Bureau's procedures for issuing CIDs. It authorizes the Assistant Director of the Office of Enforcement to issue CIDs for documentary material, tangible things, written reports, answers to questions, and oral testimony. This section of the Interim Final Rule details the information that must be included in CIDs and the requirement that responses be made under a sworn certificate. Section 1080.6 of the Interim Final Rule also authorizes the Assistant Director of the Office of Enforcement to negotiate and approve the terms of compliance with CIDs and grant extensions for good cause. Finally, this section of the Interim Final Rule describes the procedures for seeking an order to modify or set aside a CID, which the Director is authorized to rule upon.
One commenter argued that § 1080.6(a) permits almost any Bureau employee to issue CIDs without sufficient supervision. The commenter stated that this lack of oversight is problematic and does not reflect Congress' intent when it enacted the Act.
Section 1080.6(a) of the Final Rule limits the authority to issue CIDs to the Director, the Assistant Director of the Office of Enforcement, and the Deputy Assistant Directors of the Office of Enforcement. This change to the Final Rule balances the efficiency of the Bureau's investigative process with appropriate supervision and oversight.
A commenter suggested that the Bureau require a conference between the CID recipient and the Assistant Director of the Office of Enforcement within ten days of service of the CID to negotiate and approve the terms of compliance. The commenter envisioned a conference analogous to a discovery planning conference under the Federal Rules of Civil Procedure, during which the parties could discuss requests for information, appropriate limitations on the scope of requests, issues related to electronically stored information (ESI), issues related to privilege and confidential information, and a reasonable time for compliance. The commenter stated that this type of conference would better ensure prompt and efficient production of material and information related to the investigation.
The Bureau agrees that a conference between the parties within ten calendar days of serving a CID is likely to improve the efficiency of investigations, and § 1080.6(c) of the Final Rule provides for such a conference. The Final Rule does not, however, adopt the suggestion that the Assistant Director of the Office of Enforcement preside over all such conferences.
Several commenters also noted concern with the statement in § 1080.6(d) of the Interim Final Rule disfavoring extensions of time for petitioning for an order modifying or setting aside CIDs. One commenter argued that the 20-day period to file petitions, for which extensions of time are disfavored, is inconsistent with the “reasonable” period of time for compliance with the CID set forth in § 1080.6(a). The commenter also argued that this timeframe leaves a short period for the CID recipient to decide which documents are privileged or otherwise protected and to file a petition articulating privilege and scope objections. Another commenter noted that the analogous FTC rules do not include a provision disfavoring extensions for petitions to modify or set aside a CID. These commenters recommended that the Bureau delete the sentence related to disfavoring extensions. One commenter recommended that the rules be corrected to provide an independent review if a covered person believes a CID is without merit.
Like the Interim Final Rule, the Final Rule includes a provision disfavoring extensions of time for petitions to modify or set aside a CID. The Bureau believes its policy of disfavoring extensions is appropriate in light of its significant interest in promoting an efficient process for seeking materials through CIDs. By disfavoring extensions, the Bureau means to prompt recipients to decide within 20 days whether they intend to comply with the CID. The Final Rule also clarifies that this 20-day period should be computed with calendar days.
The Bureau notes that § 1080.6(d) of the Interim Final Rule (now § 1080.6(e) of the Final Rule) only provides the due date for a petition for an order modifying or setting aside a CID. It does not require recipients to comply fully
Section 1080.6(e) of the Final Rule clarifies that recipients of CIDs should not assert claims of privilege through a petition for an order modifying or setting aside a CID. Instead, when privilege is the only basis for withholding particular materials, they should utilize the procedures set forth in § 1080.8 (withholding requested material) of the Final Rule. Section 1080.6(e) of the Final Rule also lays out the authority of Bureau investigators to provide to the Director a reply to a petition seeking an order modifying or setting aside a CID. Specifically, the Final Rule states that Bureau investigators may provide the Director with a statement setting forth any factual and legal responses to a petition. The Bureau will not make these statements or any other internal deliberations part of the Bureau's public records. Section 1080.6(g) of the Final Rule clarifies that the Bureau, however, will make publicly available both the petition and the Director's order in response. Section 1080.6(g) of the Final Rule also clarifies that if a CID recipient wants to prevent the Director from making the petition public, any showing of good cause must be made no later than the time the petition is filed. The Final Rule also adds a provision clarifying how the Bureau will serve the petitioner with the Director's order.
Finally, the Bureau believes the procedures for petitions to modify or set aside a CID set forth in the Final Rule adequately protect a covered person who believes a CID is without merit, and that an additional independent review is unnecessary.
This section of the Interim Final Rule describes the procedures for investigational hearings initiated pursuant to a CID for oral testimony. It also lays out the roles and responsibilities of the Bureau investigator conducting the investigational hearing, which include excluding unauthorized persons from the hearing room and ensuring that the investigational hearing is transcribed, the witness is duly sworn, the transcript is a true record of the testimony, and the transcript is provided to the designated custodian.
A commenter argued that the Bureau is not authorized to conduct joint investigations with State attorneys general under the Dodd-Frank Act and, correspondingly, State attorneys general cannot attend an investigational hearing as a representative of an agency with whom the Bureau is conducting a joint investigation. The commenter argued that Congress distinguished between State attorneys general and State regulatory agencies in section 1042 of the Dodd-Frank Act and that State attorneys general are therefore not “agencies” with whom the Bureau can partner. The commenter also asserted that the Bureau cannot share a copy of the transcript of an investigational hearing with another agency without the consent of the witness.
Another commenter argued that representatives of agencies with which the Bureau is conducting a joint investigation may be present at an investigational hearing only with the witness's consent. This commenter stated that the Bureau should recognize in the rules that a witness who does not consent to the presence of a representative of another agency at an investigational hearing should not be presumed guilty.
The Dodd-Frank Act states that the Bureau “may engage in joint investigations and requests for information, as authorized under this title.” This statutory language permits the Bureau to engage in joint investigations with State or Federal law enforcement agencies, including State attorneys general, with jurisdiction that overlaps with the Bureau's. The Bureau's disclosure rules also permit the Bureau to share certain confidential information, including investigational hearing transcripts, with Federal or State agencies to the extent the disclosure is relevant to the exercise of an agency's statutory or regulatory authority.
Thus, the Bureau adopts § 1080.7 of the Interim Final Rule as the Final Rule without change.
This section of the Interim Final Rule describes the procedures that apply when persons withhold material responsive to a CID. It requires the recipient of the CID to assert a privilege by the production date and, if so directed in the CID, also to submit a detailed schedule of the items withheld. Section 1080.8 also sets forth the procedures for handling the disclosure of privileged or protected information or communications.
The Bureau received no comment on § 1080.8 of the Interim Final Rule and is adopting it as the Final Rule without substantive change.
This section of the Interim Final Rule describes the rights of persons compelled to submit information or provide testimony in an investigation. It details the procedures for obtaining a copy of submitted documents or a copy of or access to a transcript of the person's testimony. This section of the Interim Final Rule also describes a witness's right to make changes to his or her transcript and the rules for signing the transcript.
Section 1080.9 of the Interim Final Rule lays out a person's right to counsel at an investigational hearing and describes his or her counsel's right to advise the witness as to any question posed for which an objection may properly be made. It also describes the witness's or counsel's rights to object to questions or requests that the witness is privileged to refuse to answer. This section of the Interim Final Rule states that counsel for the witness may not otherwise object to questions or interrupt the examination to make statements on the record but may request that the witness have an opportunity to clarify any of his or her answers. Finally, this section of the Interim Final Rule authorizes the Bureau investigator to take all necessary action during the course of the hearing to avoid delay and to prevent or restrain disorderly, dilatory, obstructionist, or contumacious conduct, or contemptuous language.
A commenter noted that under the Interim Final Rule witnesses could not object during an investigational hearing on the ground that a question was outside the scope of the investigation. The commenter argued that a covered person's inability to raise such objections might allow “a fishing expedition.” The commenter recommended amending § 1080.9(b) to allow objections based on scope.
Section 1052(c)(13)(D)(iii) of the Dodd-Frank Act states, in relevant part:
[a]n objection may properly be made, received, and entered upon the record when it is claimed that such person is entitled to
The Final Rule clarifies that counsel may confer with a witness while a question is pending or instruct a witness not to answer a question only if an objection based on privilege or work product may properly be made. The Final Rule also describes counsel's limited ability to make additional objections based on other constitutional or legal rights. The Final Rule provides that if an attorney has refused to comply with his or her obligations in the rules of this part, or has allegedly engaged in disorderly, dilatory, obstructionist, or contumacious conduct, or contemptuous language during an investigational hearing, the Bureau may take further action, including action to suspend or disbar the attorney from further participation in the investigation or further practice before the Bureau pursuant to 12 CFR 1081.107(c). The Final Rule also includes other nonsubstantive changes, including clarifying that the 30-day period that the witness has to sign and submit his or her transcript should be computed using calendar days.
This section of the Interim Final Rule authorizes the Director, the Assistant Director of the Office of Enforcement, and the General Counsel to initiate an action to enforce a CID in connection with the failure or refusal of a person to comply with, or to obey, a CID. In addition, they are authorized to seek civil contempt or other appropriate relief in cases where a court order enforcing a CID has been violated.
The Bureau received no comment on § 1080.10 of the Interim Final Rule and is adopting it as the Final Rule without substantive change.
This section of the Interim Final Rule explains that an enforcement action may be instituted in Federal or State court or through administrative proceedings when warranted by the facts disclosed by an investigation. It further provides that the Bureau may refer investigations to appropriate Federal, State, or foreign government agencies as appropriate. This section of the Interim Final Rule also authorizes the Assistant Director of the Office of Enforcement to close the investigation when the facts of an investigation indicate an enforcement action is not necessary or warranted in the public interest.
One commenter indicated that the Bureau's authority to refer investigations to other law enforcement agencies should be limited to circumstances when it is expressly authorized to do so by the Dodd-Frank Act, an enumerated consumer financial law, or other Federal law, because of potential risks to the confidentiality of the investigatory files.
The Bureau's ability to refer matters to appropriate law enforcement agencies is inherent in the Bureau's authority and is a corollary to the Bureau's statutorily recognized ability to conduct joint investigations. The documentary materials and tangible things obtained by the Bureau pursuant to a CID are subject to the requirements and procedures relating to disclosure of records and information in part 1070 of this title. These procedures for sharing information with law enforcement agencies provide significant and sufficient protections for these materials.
The Bureau has amended § 1080.11 to clarify that the Assistant Director and any Deputy Assistant Director of the Office of Enforcement are authorized to close investigations.
The Bureau adopts § 1080.11 of the Interim Final Rule with the changes discussed above.
This section of the Interim Final Rule authorizes the Assistant Director of the Office of Enforcement to request approval from the Attorney General for the issuance of an order requiring a witness to testify or provide other information and granting immunity under 18 U.S.C. 6004. The Interim Final Rule also sets forth the Bureau's right to review the exercise of these functions and states that the Bureau will entertain an appeal from an order requiring a witness to testify or provide other information only upon a showing that a substantial question is involved, the determination of which is essential to serve the interests of justice. Finally, this section of the Interim Final Rule describes the applicable rules and time limits for such appeals.
A commenter questioned whether this section of the Interim Final Rule would permit any Bureau employee to request that the Attorney General approve the issuance of an order granting immunity under 18 U.S.C. 6004 and requiring a witness to testify or provide information. The commenter noted that the Dodd-Frank Act authorizes the Bureau, with the Attorney General's permission, to compel a witness to testify under 18 U.S.C. 6004 if the witness invokes his or her privilege against self-incrimination. The commenter argued that this section should delegate the authority to seek permission to compel testimony to a specific individual to provide accountability and ensure that information is not disclosed to the Attorney General in a manner that violates the Right to Financial Privacy Act. The commenter noted that the FTC's analogous rule specifically lists the senior agency officials who are authorized to make such requests to the Attorney General, and identifies a liaison officer through whom such requests must be made. The commenter also suggested that § 1080.12(b) of the Interim Final Rule, which provides that the Assistant Director's exercise of this authority is subject to review by “the Bureau,” specify who will conduct this review.
The Final Rule provides that only the Director of the Bureau has the authority to request approval from the Attorney General for the issuance of an order requiring a witness to testify or provide other information and granting immunity under 18 U.S.C. 6004. This change addresses the concern that requests for witness immunity would be made without oversight. Limiting this authority to the Director provides sufficient accountability.
This section of the Interim Final Rule describes the procedures for designating a custodian and deputy custodian for material produced pursuant to a CID in an investigation. It also states that these materials are for the official use of the Bureau, but, upon notice to the custodian, must be made available for examination during regular office hours by the person who produced them.
A commenter suggested that the Bureau should detail the particular duties of custodians designated under this section and that, without an enumerated list of duties, the custodian would not have any responsibilities regarding CID materials. The commenter noted that the FTC Act requires the custodian to take specific actions, while the Dodd-Frank Act does not. The commenter suggested specifying a series of custodial duties, including (1) taking and maintaining custody of all materials submitted pursuant to CIDs or subpoenas that the Bureau issues,
Section 1052 of the Dodd-Frank Act sets forth the duties of the Bureau's custodian. Sections 1052(c)(3) through (c)(6) of the Dodd-Frank Act give the custodian responsibility for receiving documentary material, tangible things, written reports, answers to questions, and transcripts of oral testimony given by any person in compliance with any CID. Section 1052(d) of the Dodd-Frank Act, as well as the Bureau's Rules for Disclosure of Records and Information in part 1070 of this title, outline the requirements for the confidential treatment of demand material. Section 1052(g) addresses custodial control and provides that a person may file, in the district court of the United States for the judicial district within which the office of the custodian is situated, a petition for an order of such court requiring the performance by the custodian of any duty imposed upon him by section 1052 of the Dodd-Frank Act or by Bureau rule. These duties and obligations do not require additional clarification by rule.
The Final Rule clarifies that the custodian has the powers and duties of both section 1052 of the Dodd-Frank Act and 12 CFR 1070.3.
The Bureau adopts § 1080.13 of the Interim Final Rule with the changes discussed above.
Section 1080.14 of the Interim Final Rule explains that documentary materials, written reports, answers to questions, tangible things, or transcripts of oral testimony received by the Bureau in any form or format pursuant to a CID are subject to the requirements and procedures relating to disclosure of records and information in part 1070 of this title. This section of the Interim Final Rule also states that investigations generally are non-public. A Bureau investigator may disclose the existence of an investigation to the extent necessary to advance the investigation.
A commenter recommended that the Bureau revise this section to mandate that Bureau investigations remain confidential. The commenter noted the potential reputation risk to an entity if an investigation is disclosed to the public. In addition, the commenter argued that failing to conduct investigations confidentially will increase litigation risk. One commenter recommended that the Bureau issue a public absolution of a company if the Bureau does not maintain the confidentiality of an investigation.
Section 1080.14 of the Interim Final Rule provides that investigations generally will not be disclosed to the public, but permits Bureau investigators to disclose the existence of an investigation when necessary to advance the investigation. The Interim Final Rule does not contemplate publicizing an investigation, but rather disclosing the existence of the investigation to, for example, a potential witness or third party with potentially relevant information when doing so is necessary to advance the investigation. This limited exception sufficiently balances the concerns expressed by the commenter with the Bureau's need to obtain information efficiently.
Thus, the Bureau adopts § 1080.14 of the Interim Final Rule as the Final Rule without change.
In developing the Final Rule, the Bureau has considered the potential benefits, costs, and impacts, and has consulted or offered to consult with the prudential regulators, HUD, the SEC, the Department of Justice, and the FTC, including with regard to consistency with any prudential, market, or systemic objectives administered by such agencies.
The Final Rule neither imposes any obligations on consumers nor is expected to have any appreciable impact on their access to consumer financial products or services. Rather, the Final Rule provides a clear, efficient mechanism for investigating compliance with the Federal consumer financial laws, which benefits consumers by creating a systematic process to protect them from unlawful behavior.
The Final Rule imposes certain obligations on covered persons who receive CIDs in Bureau investigations. Specifically, as described above, the Final Rule sets forth the process for complying with or objecting to CIDs for documentary material, tangible things, written reports or answers to questions, and oral testimony. Most obligations in the Final Rule stem from express language in the Dodd-Frank Act and do not impose additional burdens on covered persons.
To the extent that the Final Rule includes provisions not expressly required by statute, these provisions benefit covered persons by providing clarity and certainty. In addition, the Final Rule vests the Bureau with discretion to modify CIDs or extend the time for compliance for good cause. This flexibility benefits covered persons by enabling the Bureau to assess the cost of compliance with a civil investigative demand in a particular circumstance and take appropriate steps to mitigate any unreasonable compliance burden.
Moreover, because the Final Rule is largely based on section 20 of the FTC Act and its corresponding regulations, it should present an existing, stable model of investigatory procedures to covered persons. This likely familiarity to covered persons should further reduce the compliance costs for covered persons.
The Final Rule provides that requests for extensions of time to file petitions to modify or set aside CIDs are disfavored. This may impose a burden on covered entities in some cases, but it may also lead to a more expeditious resolution of matters, reducing uncertainty. Furthermore, the Final Rule has no unique impact on insured depository institutions or insured credit unions with less than $10 billion in assets as described in section 1026(a) of the Dodd-Frank Act. Nor does the Final Rule have a unique impact on rural consumers.
A commenter suggested that the Bureau conduct a nonpublic study of the impact of complying with a CID on the entities who have been subjected to them by other agencies, with specific focus on those that were found not to have violated the law. As the commenter implicitly recognizes, such data does not currently exist and thus was not reasonably available to the Bureau in finalizing the Interim Final Rule. Moreover, as explained above, most of the costs associated with complying with a CID result from the Dodd-Frank Act, which authorizes the Bureau to issue such demands.
A commenter asserted that disfavoring extensions of petitions to
Another commenter stated that the four interim final rules that the Bureau promulgated together on July 28, 2011 failed to satisfy the rulemaking requirements under section 1022 of the Dodd-Frank Act. Specifically, the commenter stated that “the CFPB's analysis of the costs and benefits of its rules does not recognize the significant costs the CFPB imposes on covered persons.” The Bureau believes that it appropriately considered the benefits, costs, and impacts of the Interim Final Rule pursuant to section 1022. Notably, the commenter did not identify any specific costs to covered persons that are not discussed in Part C of the
As noted in publishing the Interim Final Rule, under the Administrative Procedure Act, 5 U.S.C. 553(b), notice and comment is not required for rules of agency organization, procedure, or practice. As discussed in the preamble to the Interim Final Rule, the Bureau confirms its finding that this is a procedural rule for which notice and comment is not required. In addition, because the Final Rule relates solely to agency procedure and practice, it is not subject to the 30-day delayed effective date for substantive rules under section 553(d) of the Administrative Procedure Act, 5 U.S.C. 551
Administrative practice and procedure, Banking, Banks, Consumer protection, Credit, Credit unions, Investigations, Law enforcement, National banks, Savings associations, Trade practices.
For the reasons set forth in the preamble, the Bureau of Consumer Financial Protection revises part 1080 to Chapter X in Title 12 of the Code of Federal Regulations to read as follows:
Pub. L. 111-203, Title X, 12 U.S.C. 5481
The rules of this part apply to Bureau investigations conducted pursuant to section 1052 of the Dodd-Frank Act, 12 U.S.C. 5562.
For the purposes of this part, unless explicitly stated to the contrary:
The Bureau shall act only in the public interest and will not initiate an investigation or take other enforcement action when the alleged violation is merely a matter of private controversy and does not tend to affect adversely the public interest.
The Assistant Director of the Office of Enforcement and the Deputy Assistant Directors of the Office of Enforcement have the nondelegable authority to initiate investigations. Bureau investigations are conducted by Bureau investigators designated and duly authorized under section 1052 of the Dodd-Frank Act, 12 U.S.C. 5562, to conduct such investigations. Bureau investigators are authorized to exercise and perform their duties in accordance with the laws of the United States and the regulations of the Bureau.
Any person compelled to furnish documentary material, tangible things, written reports or answers to questions, oral testimony, or any combination of
(a)
(1)
(ii) Production of documentary material in response to a civil investigative demand shall be made under a sworn certificate, in such form as the demand designates, by the person to whom the demand is directed or, if not a natural person, by any person having knowledge of the facts and circumstances relating to such production, to the effect that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has been produced and made available to the custodian.
(2)
(ii) Submissions of tangible things in response to a civil investigative demand shall be made under a sworn certificate, in such form as the demand designates, by the person to whom the demand is directed or, if not a natural person, by any person having knowledge of the facts and circumstances relating to such production, to the effect that all of the tangible things required by the demand and in the possession, custody, or control of the person to whom the demand is directed have been submitted to the custodian.
(3)
(ii) Each reporting requirement or question in a civil investigative demand shall be answered separately and fully in writing under oath. Responses to a civil investigative demand for a written report or answers to questions shall be made under a sworn certificate, in such form as the demand designates, by the person to whom the demand is directed or, if not a natural person, by any person responsible for answering each reporting requirement or question, to the effect that all of the information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted to the custodian.
(4)
(ii) Where a civil investigative demand requires oral testimony from an entity, the civil investigative demand shall describe with reasonable particularity the matters for examination and the entity must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf. Unless a single individual is designated by the entity, the entity must designate the matters on which each designee will testify. The individuals designated must testify about information known or reasonably available to the entity and their testimony shall be binding on the entity.
(b)
(c)
(1)
(2)
(3)
(d)
(e)
(1)
(2)
(3)
(4)
(f)
(g)
(a) Investigational hearings, as distinguished from hearings in adjudicative proceedings, may be conducted pursuant to a civil investigative demand for the giving of oral testimony in the course of any Bureau investigation, including inquiries initiated for the purpose of determining whether or not a respondent is complying with an order of the Bureau.
(b) Investigational hearings shall be conducted by any Bureau investigator for the purpose of hearing the testimony of witnesses and receiving documentary material, tangible things, or other information relating to any subject under investigation. Such hearings shall be under oath or affirmation and stenographically reported, and a transcript thereof shall be made a part of the record of the investigation. The Bureau investigator conducting the investigational hearing also may direct that the testimony be recorded by audio, audiovisual, or other means, in which case the recording shall be made a part of the record of the investigation as well.
(c) In investigational hearings, the Bureau investigators shall exclude from the hearing room all persons except the person being examined, his or her counsel, the officer before whom the testimony is to be taken, any investigator or representative of an agency with which the Bureau is engaged in a joint investigation, and any individual transcribing or recording such testimony. At the discretion of the Bureau investigator, and with the consent of the person being examined, persons other than those listed in this paragraph may be present in the hearing room. The Bureau investigator shall certify or direct the individual transcribing the testimony to certify on the transcript that the witness was duly sworn and that the transcript is a true record of the testimony given by the witness. A copy of the transcript shall be forwarded promptly by the Bureau investigator to the custodian designated in section 1080.13.
(a) Any person withholding material responsive to a civil investigative demand or any other request for production of material shall assert a claim of privilege not later than the date set for the production of material. Such person shall, if so directed in the civil investigative demand or other request for production, submit, together with such claim, a schedule of the items withheld which states, as to each such item, the type, specific subject matter, and date of the item; the names, addresses, positions, and organizations of all authors and recipients of the item; and the specific grounds for claiming that the item is privileged. The person who submits the schedule and the attorney stating the grounds for a claim that any item is privileged must sign it.
(b) A person withholding material solely for reasons described in this subsection shall comply with the requirements of this subsection in lieu of filing a petition for an order modifying or setting aside a civil investigative demand pursuant to section 1080.6(e).
(c) Disclosure of privileged or protected information or communications produced pursuant to a civil investigative demand shall be handled as follows:
(1) The disclosure of privileged or protected information or communications shall not operate as a waiver with respect to the Bureau if:
(i) The disclosure was inadvertent;
(ii) The holder of the privilege or protection took reasonable steps to prevent disclosure; and
(iii) The holder promptly took reasonable steps to rectify the error, including notifying a Bureau investigator of the claim of privilege or protection and the basis for it.
(2) After being notified, the Bureau investigator must promptly return, sequester, or destroy the specified information and any copies; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if he or she disclosed it before being notified; and, if appropriate, may sequester such material until such time as a hearing officer or court rules on the merits of the claim of privilege or protection. The producing party must preserve the information until the claim is resolved.
(3) The disclosure of privileged or protected information or communications shall waive the privilege or protection with respect to the Bureau as to undisclosed information or communications only if:
(i) The waiver is intentional;
(ii) The disclosed and undisclosed information or communications concern the same subject matter; and
(iii) They ought in fairness to be considered together.
(a) Any person compelled to submit documentary material, tangible things, or written reports or answers to questions to the Bureau, or to testify in an investigational hearing, shall be entitled to retain a copy or, on payment of lawfully prescribed costs, request a copy of the materials, things, reports, or written answers submitted, or a transcript of his or her testimony. The Bureau, however, may for good cause deny such a request and limit the witness to inspection of the official transcript of the testimony. Upon completion of transcription of the testimony of the witness, the witness shall be offered an opportunity to read the transcript of his or her testimony. Any changes by the witness shall be entered and identified upon the transcript by the Bureau investigator with a statement of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness and submitted to the Bureau unless the witness cannot be found, is ill, waives in writing his or her right to signature, or refuses to sign. If the signed transcript is not submitted to the Bureau within 30 calendar days of the witness being afforded a reasonable opportunity to review it, the Bureau investigator, or the individual transcribing the testimony acting at the Bureau investigator's direction, shall sign the transcript and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with any reasons given for the failure to sign.
(b) Any witness compelled to appear in person at an investigational hearing may be accompanied, represented, and advised by counsel as follows:
(1) Counsel for a witness may advise the witness, in confidence and upon the initiative of either counsel or the witness, with respect to any question asked of the witness where it is claimed that a witness is privileged to refuse to answer the question. Counsel may not otherwise consult with the witness while a question directed to the witness is pending.
(2) Any objections made under the rules in this part shall be made only for the purpose of protecting a constitutional or other legal right or privilege, including the privilege against self-incrimination. Neither the witness nor counsel shall otherwise object or refuse to answer any question. Any objection during an investigational hearing shall be stated concisely on the record in a nonargumentative and nonsuggestive manner. Following an objection, the examination shall proceed and the testimony shall be taken, except for testimony requiring the witness to divulge information protected by the claim of privilege or work product.
(3) Counsel for a witness may not, for any purpose or to any extent not allowed by paragraphs (b)(1) and (2) of this section, interrupt the examination of the witness by making any objections or statements on the record. Petitions challenging the Bureau's authority to conduct the investigation or the sufficiency or legality of the civil investigative demand shall be addressed to the Bureau in advance of the hearing in accordance with § 1080.6(e). Copies of such petitions may be filed as part of the record of the investigation with the Bureau investigator conducting the investigational hearing, but no arguments in support thereof will be allowed at the hearing.
(4) Following completion of the examination of a witness, counsel for the witness may, on the record, request that the Bureau investigator conducting the investigational hearing permit the witness to clarify any of his or her answers. The grant or denial of such request shall be within the sole discretion of the Bureau investigator conducting the hearing.
(5) The Bureau investigator conducting the hearing shall take all necessary action to regulate the course of the hearing to avoid delay and to prevent or restrain disorderly, dilatory, obstructionist, or contumacious conduct, or contemptuous language. Such Bureau investigator shall, for reasons stated on the record, immediately report to the Bureau any instances where an attorney has allegedly refused to comply with his or her obligations under the rules in this part, or has allegedly engaged in disorderly, dilatory, obstructionist, or contumacious conduct, or contemptuous language in the course of the hearing. The Bureau will thereupon take such further action, if any, as the circumstances warrant, including actions consistent with those described in 12 CFR 1081.107(c) to suspend or disbar the attorney from further practice before the Bureau or exclude the attorney from further participation in the particular investigation.
(a) In cases of failure to comply in whole or in part with Bureau civil investigative demands, appropriate action may be initiated by the Bureau, including actions for enforcement.
(b) The Director, the Assistant Director of the Office of Enforcement, and the General Counsel of the Bureau are authorized to:
(1) Institute, on behalf of the Bureau, an enforcement proceeding in the district court of the United States for any judicial district in which a person resides, is found, or transacts business, in connection with the failure or refusal of such person to comply with, or to obey, a civil investigative demand in whole or in part if the return date or any extension thereof has passed; and
(2) Seek civil contempt or other appropriate relief in cases where a court order enforcing a civil investigative demand has been violated.
(a) When the facts disclosed by an investigation indicate that an enforcement action is warranted, further proceedings may be instituted in Federal or State court or pursuant to the Bureau's administrative adjudicatory process. Where appropriate, the Bureau also may refer investigations to appropriate Federal, State, or foreign governmental agencies.
(b) When the facts disclosed by an investigation indicate that an enforcement action is not necessary or would not be in the public interest, the investigational file will be closed. The matter may be further investigated, at any time, if circumstances so warrant.
(c) The Assistant Director of the Office of Enforcement and the Deputy Assistant Directors of the Office of Enforcement are authorized to close Bureau investigations.
The Director has the nondelegable authority to request approval from the Attorney General of the United States for the issuance of an order requiring a witness to testify or provide other information and granting immunity under 18 U.S.C. 6004.
(a) The Bureau shall designate a custodian and one or more deputy custodians for material to be delivered pursuant to a civil investigative demand in an investigation. The custodian shall have the powers and duties prescribed by 12 CFR 1070.3 and section 1052 of the Act, 12 U.S.C. 5562. Deputy custodians may perform all of the duties assigned to custodians.
(b) Material produced pursuant to a civil investigative demand, while in the custody of the custodian, shall be for the official use of the Bureau in accordance with the Act; but such material shall upon reasonable notice to the custodian
(a) Documentary materials, written reports, answers to questions, tangible things or transcripts of oral testimony the Bureau receives in any form or format pursuant to a civil investigative demand are subject to the requirements and procedures relating to the disclosure of records and information set forth in part 1070 of this title.
(b) Bureau investigations generally are non-public. Bureau investigators may disclose the existence of an investigation to potential witnesses or third parties to the extent necessary to advance the investigation.
Bureau of Consumer Financial Protection.
Final rule.
The Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (Dodd-Frank Act) requires the Bureau of Consumer Financial Protection (Bureau) to prescribe rules establishing procedures that govern the process by which State Officials notify the Bureau of actions undertaken pursuant to the authority granted to the States to enforce the Dodd-Frank Act or regulations prescribed thereunder. This final State Official Notification Rule (Final Rule) sets forth the procedures to govern this process.
The Final Rule is effective June 29, 2012.
Veronica Spicer, Office of Enforcement, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552, at (202) 435-7545.
The Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (Dodd-Frank Act) was signed into law on July 21, 2010. Title X of the Dodd-Frank Act established the Bureau to regulate the offering and provision of consumer financial products or services under the Federal consumer financial laws. Section 1042 of the Dodd-Frank Act, 12 U.S.C. 5552, governs the enforcement powers of the States under the Dodd-Frank Act. Under section 1042(a), a State attorney general or regulator (State Official) may bring an action to enforce Title X of the Dodd-Frank Act and regulations issued thereunder. Prior to initiating any such action, the State Official is required to provide notice of the action to the Bureau and the prudential regulator, if any, pursuant to section 1042(b) of the Dodd-Frank Act. Section 1042(b) further authorizes the Bureau to intervene in the State Official's action as a party, remove the action to a Federal district court, and appeal any order or judgment.
Pursuant to section 1042(c) of the Dodd-Frank Act, the Bureau is required to issue regulations implementing the requirements of section 1042. On July 28, 2011, the Bureau promulgated the State Official Notification Rule (Interim Final Rule) with a request for comment. The comment period for the Interim Final Rule ended on September 26, 2011. After reviewing and considering the issues raised by the comments, the Bureau now promulgates the Final Rule establishing a procedure for the timing and content of the notice required to be provided by State Officials pursuant to section 1042(b) of the Dodd-Frank Act, 12 U.S.C. 5552(b).
Like the Interim Final Rule, the Final Rule implements a procedure for the timing and content of the notice required by section 1042(b), sets forth the responsibilities of the recipients of the notice, and specifies the rights of the Bureau to participate in actions brought by State Officials under section 1042(a) of the Dodd-Frank Act. In drafting the Final Rule, the Bureau endeavored to create a process that would provide both the Bureau and, where applicable, the prudential regulators with timely notice of pending actions and account for the investigation and litigation needs of State regulators and law enforcement agencies. In keeping with this approach, the Final Rule provides for a default notice period of at least ten calendar days, with exceptions for emergencies and other extenuating circumstances, and requires substantive notice that is both straightforward and comprehensive. The Final Rule further makes clear that the Bureau can intervene as a party in an action brought by a State Official under Title X of the Dodd-Frank Act or a regulation prescribed thereunder, provides for the confidential treatment of non-public information contained in the notice if a State so requests, and provides that provision of notice shall not be deemed a waiver of any applicable privilege. In addition, the Final Rule specifies that the notice provisions do not create any procedural or substantive rights for parties in litigation against the United States or against a State that brings an action under Title X of the Dodd-Frank Act or a regulation prescribed thereunder.
Section 1042(c) of the Dodd-Frank Act authorizes the Bureau to prescribe regulations implementing the requirements of section 1042(b). In addition, the Bureau has general rulemaking authority pursuant to section 1022(b)(1) of the Dodd-Frank Act to prescribe rules to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws and to prevent evasions thereof.
In response to the Interim Final Rule, the Bureau received several comments. Four letters were received from associations representing the financial industry, two letters were received from financial industry regulators and supervisors, and one letter was received from an individual consumer. The Bureau also received a comment letter from a financial industry regulator in response to its
The financial industry associations' comments fell into several general categories. Several comments expressed concerns about the Bureau's ability to maintain confidentiality for notification materials received by the Bureau. Other commenters requested clarity as to the type of actions for which the Bureau requires notification. One commenter requested that the Bureau require uniform interpretation by States of all Federal law within the Bureau's jurisdiction.
The comment letters received from industry regulators and supervisors focused on several concerns. Several commenters requested clarification of the types of actions for which the Bureau requires notification. The commenters also expressed concerns about the timing of the notice requirement prior to bringing an action, and one of the commenters requested clarification as to the application of the notification requirement to actions involving credit unions.
The comment letter from an individual consumer did not contain any specific comments or suggestions pertaining to the Interim Final Rule.
The comments received by the Bureau are discussed in more detail below in part V of the
Section 1082.1(a) of the Interim Final Rule sets out the timing and process for notice by State Officials under non-emergency circumstances. The section requires State Officials to provide notice no later than ten days prior to initiating an action to enforce Title X of the Dodd-Frank Act or any regulation prescribed thereunder. The section also identifies to whom and how the notice should be sent and sets out an exception to the timing of the notice.
Several commenters asked the Bureau to clarify the types of proceedings subject to notification under this section. Commenters were concerned about lack of clarity in the use of the term “action.” The commenters noted that State regulators often pursue various courses of “action,” many of which do not rise to the level of a court or administrative proceeding, such as examination findings, confidential memorandums of understanding, licensing actions, and other similar “actions.” Commenters also asked the Bureau to clarify when it would consider an action to be one for the enforcement of any provisions of “the Act or any regulation prescribed thereunder” pursuant to § 1082.1(a)(1) of the Interim Final Rule. Specifically, the commenters asked whether notice is required when a State Official brings an action: (1) Pursuant to an enumerated Federal consumer financial law, other than Title X, or its implementing regulations, which the Bureau now has jurisdiction to enforce; or (2) pursuant to a State law that is predicated on Federal law, specifically Title X, but does not bring the action directly under Title X.
The Final Rule amends the Interim Final Rule to clarify the types of proceedings subject to the notice requirement. The Final Rule provides that an action requiring notification under this section is any adjudicative proceeding before a court or an administrative or regulatory body to determine whether a violation of any provision of Title X of the Dodd-Frank Act or any regulation prescribed thereunder has occurred.
Initiating an action under this section would include, but not be limited to, the filing of a complaint, motion for relief, or other document which initiates an action in a court or administrative or regulatory body. The Final Rule does not apply, for example, to examination findings or licensing proceedings. With regards to the substance of actions covered, the Final Rule does not apply to actions brought under the enumerated consumer laws, as defined in section 1002(12) of the Dodd-Frank Act, or the laws for which authorities are transferred to the Bureau under subtitles F and H of the Dodd-Frank Act, though some of those enumerated statutes have their own respective notification requirements that must be complied with. Nor would the Final Rule require notification of actions under State laws that are predicated on violations of Title X or regulations issued thereunder.
The Bureau, however, encourages State Officials to consult with the Bureau whenever interpretation of Federal consumer financial law, as defined in section 1002(14) of the Dodd-Frank Act, the regulations promulgated under Federal consumer financial law, or State law predicated on violations of Federal consumer financial law is relevant to a State regulatory or law enforcement matter, even if it is not the type of action for which notification is required. State Officials are also encouraged to consult with the Bureau when in doubt as to whether a particular anticipated activity is covered by this Final Rule. State Officials that wish to consult with the Bureau in this context may contact the Bureau via electronic mail at
The Bureau was also asked to clarify the application of § 1082.1(a) to covered entities approaching the $10 billion asset threshold relevant to the Bureau's supervisory authority under sections 1025 and 1026 of the Dodd-Frank Act or to those that fall below the threshold at a point in time. Section 1042 of the Dodd-Frank Act and paragraph 1082.1(a) apply to all actions brought by State Officials under Title X of the Dodd-Frank Act or any regulation promulgated thereunder, against any covered person, regardless of whether or not the entity's assets are above or below the threshold amount.
The Bureau also received several comments raising policy concerns. One commenter noted that it would not be prudent to impede a regulator's ability to apply the law in a timely manner simply because of a ten-day advance notice requirement. The Bureau agrees that delaying initiation of an action for the ten calendar day advance notice requirement may not always be in the public interest. The Bureau refers State Officials to § 1082.1(b), which governs
Another commenter recommended that the Bureau require uniform interpretations of Federal law among various regulators at the Federal and State levels to discourage State attorneys general and other State regulators from initiating enforcement actions based on interpretations of Federal law that are not supported by the Bureau. The Bureau believes that it can achieve appropriate uniformity through notification and intervention, which are the mechanisms provided in section 1042(b) the Dodd-Frank Act. The Bureau also has authority to intervene in actions as otherwise provided for by law (including the Federal Rules of Civil Procedure), and may file amicus briefs in appropriate circumstances, which may assist in the uniform interpretation of Federal law. The Bureau, however, encourages State Officials and other Federal law enforcement agencies to consult with the Bureau regarding issues related to enforcement of Federal consumer financial law, especially the Dodd-Frank Act's prohibition on unfair, deceptive and abusive acts and practices. The Bureau will make resources available through its Office of Enforcement to provide consultation on such issues as needed, even if the action is not one for which the Bureau requires notification. Government officials that wish to consult with the Bureau in this context may contact the Bureau via electronic mail at
Other commenters recommended specific changes to § 1082.1(a) of the Interim Final Rule. One commenter recommended that the Bureau include in its Final Rule a requirement that State Officials bringing an action also notify “other state regulatory officials,” such as “state consumer credit commissioners and prudential bank
The Bureau declines to adopt these recommendations. First, section 1042(b)(1) of the Dodd-Frank Act limits the recipients of the notice to the Bureau and the prudential regulator, if any. Section 1002(24) of the Dodd-Frank Act defines the term “prudential regulator” as certain Federal regulatory agencies. While notification to State regulators may also be appropriate and should be considered by State Officials, such notification is within the discretion of the State Official. Second, the Bureau believes that allowing State Officials to notice the prudential regulator by regular mail, in addition to electronic mail, provides flexibility to State Officials subject to the notice requirement and will promote compliance with this section.
On its own initiative, the Bureau also amended the Final Rule to clarify that the State Official has ten
The Bureau adopts § 1082.1(a) of the Interim Final Rule with the changes discussed above.
Section 1082.1(b) of the Interim Final Rule sets out the process for the provision of notice in emergency circumstances. The section lays out the acceptable reasons for not providing notice in accordance with § 1082.1(a), and establishes a deadline to provide notice of no more than 48 hours after the initiation of an action. The section also identifies to whom and how the notice should be sent and provides an exception to the timing of notice.
The Bureau received two comments concerning § 1082.1(b) of the Interim Final Rule. One commenter argued that the emergency exception was too broad and suggested that the Bureau include in the Final Rule specific criteria for the Bureau's determination of when an emergency exception to the ten-day notification requirement is warranted as being “in the public interest.” Along similar lines, another commenter recommended that the Bureau remove the “in the public interest” language from the Final Rule and suggested that the exception to the ten-day notification requirement should only be permitted when delaying for ten days would cause “irreparable and imminent harm or similar emergency circumstances.”
The Bureau has made minor technical revisions to the Interim Final Rule.
The Bureau adopts § 1082.1(b) of the Interim Final Rule with the changes discussed above. The Final Rule reflects the Bureau's view that determinations under § 1082.1(b) should be made on a case-by-case basis, taking into account the particular facts and circumstances of each case and that it is not necessary to include in the Final Rule specific criteria for determining when an emergency exception to the ten-day notice requirement is warranted as being “in the public interest.” The Bureau encourages State Officials to consult with the Office of Enforcement to determine instances when the emergency exception may apply.
In § 1082.1(c) of the Interim Final rule, the Bureau specifies the information that must be included in the notice provided by State Officials. This section also details certain additional information that must be provided when notice is not given until after an action has been initiated.
One commenter asked the Bureau to clarify the term “materially different” as used in § 1082.1(c)(5) of the Interim Final Rule. Under that section, the State Official must update the information provided in the notice if the State Official “intends to file a complaint, motion for relief, or similar document that is materially different” than the information initially provided. By way of clarification, material changes are those changes that substantively affect the legal or factual allegations of an action. Material changes would include, among other things, substantive changes in the factual allegations of an action, substantive changes in the citation to a State Official's legal authority to bring such an action, changes in the number of counts charged, changes in legal theories relied upon, and adding additional parties to an action. This list of material changes is not intended to be exhaustive, but is representative of the types of changes that would trigger a supplemental notification requirement under § 1082.1(c)(5). The Bureau encourages State Officials to consult with the Office of Enforcement on a case-by-case basis to determine if changes to documents filed in an action amount to “material” changes, requiring further notification.
Another commenter stated that § 1082.1(c) of the Interim Final Rule is inconsistent with section 1042(b) of the Dodd-Frank Act because § 1082.1(c) permits a State Official to provide a complete and unredacted copy of any complaint or action initiating document “in its form as of the date the notice is provided.” The commenter stated that section 1042 of the Dodd-Frank Act requires the State Official to provide the complete and “final” complaint at the time of initial notification.
Because § 1082.1(b) of the Interim Final Rule requires notification ten days in advance of a State Official filing a complaint or other action initiating document, it is impractical to require the State to provide the Bureau with the “final” version of these documents. To the extent the commenter is concerned that the notice will be inaccurate, § 1082.1(c)(5) requires supplemental notice if there are any material changes to the information provided to the Bureau in the initial notification documents.
As discussed below, § 1082.1(c) of the Interim Final Rule was also amended to require State Officials to identify, as part of the notification, any limitations the State Official requires on the disclosure of the substance or fact of the notice to any person or entity outside of the recipient agency. The Bureau also made some minor technical revisions to § 1082.1(c).
The Bureau adopts § 1082.1(c) of the Interim Final Rule with the changes discussed above.
Section 1082.1(d) of the Interim Final Rule describes how the Bureau may intervene or otherwise participate in an action initiated by a State Official.
Several commenters suggested changes to this section of the Interim Final Rule. Some commenters recommended that the Bureau revise the Interim Final Rule to provide clear standards for when it would be appropriate for the Bureau to exercise its power to intervene under § 1082.1(d). Further, one commenter suggested that the Interim Final Rule should be amended to specify under which provisions of law the Bureau may legally intervene.
Section 1042(b)(2) of the Dodd-Frank Act authorizes the Bureau to intervene in any action brought by a State Official pursuant to the authority granted to the State under section 1042(a) of the Dodd-Frank Act. The Bureau reserves the right to intervene or otherwise participate in any action where it lawfully may do so, whether under section 1042(b)(2) of the Dodd-Frank Act or under another provision of law (including the Federal Rules of Civil Procedure). As a result, the Bureau declines to amend the Interim Final Rule as recommended and will determine which actions are appropriate for intervention on a case-by-case basis.
The Bureau made some minor technical revisions to § 1082.1(d).
The Bureau adopts § 1082.1(d) of the Interim Final Rule with the changes discussed above.
Section 1082.1(e) of the Interim Final Rule governs the recipient agencies' treatment of the information provided in the notice. The Interim Final Rule provides that the substance and fact of the notice shall not be disclosed by the Bureau or the prudential regulator prior to the information becoming public and also establishes certain exceptions to this requirement. These exceptions include (1) disclosures required by law, (2) disclosures consented to by the State Official, and (3) disclosures made to another government entity to protect the public interest after consultation with the State Official. In addition, the Interim Final Rule states that the provision of notice shall not be deemed a waiver of any applicable privilege.
One commenter raised two concerns with respect to this section. First, the commenter stated that the Bureau does not have the authority to limit a prudential regulator's ability to disclose such information and asserted that prudential regulators actually have an obligation to alert entities they supervise of such a notification. Second, the commenter asserted that the Bureau has no legal basis for its assertion that information provided by State Officials pursuant to the notification requirement shall not be deemed a waiver of any applicable privilege.
Section 1082.1(e) is promulgated pursuant to the Bureau's exclusive authority, under section 1042(c) of the Dodd-Frank Act, to prescribe regulations implementing the notice requirement. That authority necessarily includes the power to determine how the notice will be provided and how any non-public information contained therein will be treated by those who receive it. The Bureau, however, has revised the Interim Final Rule to emphasize that the restrictions on disclosure emanate from the nature of the information as belonging to the State. That information, including the fact of notice itself, is typically both sensitive and confidential. There is nothing in the Dodd-Frank Act to suggest that Congress intended section 1042(b) to prevent State Officials from keeping the substance and fact of their law enforcement actions confidential vis-à-vis third parties. Accordingly, the Final Rule amends the Interim Final Rule to provide that the substance and fact of the notice shall be subject to any limitations on disclosure required by the State Official pursuant to section 1082.1(c)(viii), subject to certain exceptions. As set forth in section 1082.1(e) of the Interim Final Rule, these exceptions include (1) disclosures required by law, (2) disclosures consented to by the State Official, and (3) disclosures made to another government entity to protect the public interest after consultation with the State Official.
With respect to the commenter's assertion that prudential regulators actually have an obligation to alert entities they supervise if they receive notification of an action by a State Official, the commenter provided no support for this assertion nor is the Bureau aware of any.
With respect to the commenter's privilege concerns, the provision of notification by a State Official to the Bureau pursuant to the Final Rule will not constitute a waiver of any applicable privilege. The disclosure by State Officials of the notification materials required by the Final Rule constitutes a compelled disclosure to the Bureau of information required by law, as opposed to a voluntary disclosure or a disclosure to an adversary that would constitute a waiver of applicable privileges. Moreover, the Bureau's rulemaking authority under sections 1022 and 1042 of the Dodd-Frank Act includes the authority to prescribe rules governing the implications of compliance with the statutory notice mandate. This provision furthers that mandate by encouraging compliance.
Finally, other commenters were concerned about the disclosure of confidential and/or privileged material contained in documentation maintained by the Bureau, including State notification documents provided to the Bureau. One commenter expressed specific concern regarding maintaining confidentiality when sending electronic mail to an anonymous address such as
Section 1082.1(e) of the Final Rule expressly provides that the State Official may impose limitations on the disclosure of the substance or fact of the notice to any entity outside of the recipient agency, subject to certain exceptions. Further, the Bureau will comply with the confidentiality procedures promulgated in its Interim Final Rule governing the Disclosure of Records and Information, 12 CFR 1070, to the extent applicable, and any future amendments to that Rule. Finally, the Bureau notes that its electronic mail system, which includes the incoming mailbox for
The Bureau adopts § 1082.1(e) of the Interim Final Rule with the changes discussed above.
Section 1082.1(f) of the Interim Final Rule clarifies that § 1082.1 does not create any right, benefit, or defense which is enforceable against the United States or State Officials enforcing Title X of the Dodd-Frank Act or any regulation prescribed thereunder.
The Bureau received one comment on this section, which stated that to the extent the Interim Final Rule sets out rights enforceable under the Dodd-Frank Act or other statutes, the Interim Final Rule cannot remove those rights. Thus, the commenter recommended that the Bureau delete § 1082.1(f).
The Bureau adopts § 1082.1(f) of the Interim Final Rule without change in the Final Rule. By way of clarification, § 1082.1(f) of the Final Rule does not bar the exercise of any pre-existing rights; it merely makes clear that the Final Rule creates no additional rights.
In developing the Final Rule, the Bureau has considered the potential benefits, costs, and impacts as required by section 1022(b)(2)(A) of the Dodd-Frank Act.
The Final Rule implements the Dodd-Frank Act's requirement to provide notice to the Bureau and prudential regulators when a State initiates an action under Title X of the Dodd-Frank Act or a regulation prescribed thereunder. The Final Rule will help ensure more efficient and consistent implementation of the State notification requirement, which will benefit both consumers and covered persons. In particular, the Final Rule provides that the notice shall be subject to any limitations on disclosure imposed by the State Official subject to certain limitations, establishes notification deadlines, including an exception for emergency proceedings, and specifies the content of the notice.
The Final Rule neither imposes any obligations on consumers nor has any direct impact on their access to consumer financial products or services. Further, the Final Rule has no unique impact on insured depository institutions or insured credit unions with less than $10 billion in assets as described in section 1026(a) of the Dodd-Frank Act. Finally, the Final Rule does not have a unique impact on rural consumers.
A commenter stated that the four interim final rules that the Bureau promulgated together on July 28, 2011 failed to satisfy the rulemaking requirements under section 1022 of the Dodd-Frank Act. Specifically, the commenter stated that “the CFPB's analysis of the costs and benefits of its rules does not recognize the significant costs the CFPB imposes on covered persons.” The Bureau believes that it fully considered the benefits, costs, and impacts of the Interim Final Rule pursuant to section 1022. Notably, the commenter did not identify any specific costs to covered persons imposed by the State Notification Rule that are not discussed in part C of the
One commenter questioned whether the Interim Final Rule is exempt from the notice-and-comment requirements of section 553(b) of the Administrative Procedure Act (APA), 5 U.S.C. 553. The commenter argued that the Interim Final Rule is not properly characterized as relating solely to agency organization, procedure or practice because it requires the submission of information regarding covered persons to Federal officials and also establishes rules for the treatment of such information, which could result in potential harm to covered persons. The commenter further urged the Bureau to seek comment on similar rulemakings in the future.
The notice-and-comment procedures described in section 553(b) of the APA do not apply to rules of agency organization, procedure, or practice, or when the agency for good cause finds that notice and public comment on the rules being promulgated are impracticable or unnecessary. Both the Interim Final Rule and Final Rule relate to agency organization, procedure, or practice because they establish procedures for State Officials to provide notice to the Bureau; the requirement to provide the notice itself derives from section 1042(b)(1)(A) of the Dodd-Frank Act—not the Bureau's regulations. In any event, for the reasons discussed in the preamble to the Interim Final Rule, the Bureau had good cause for issuing the Interim Final Rule without prior notice and an opportunity for comment. The Bureau nevertheless solicited comment on the Interim Final Rule. Moreover, because the Final Rule merely finalizes the Interim Final Rule, to which it is substantially similar, the Bureau for good cause finds that additional notice and public comment on the Final Rule is unnecessary.
In addition, because the Final Rule relates solely to agency procedure and practice, it is not subject to the 30-day delayed effective date for substantive rules under section 553(d) of the Administrative Procedure Act, 5 U.S.C. 551
Because no notice of proposed rulemaking was required, the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601(2), do not apply.
The collection of information requirements contained in this Final Rule have been approved by the Office of Management and Budget (OMB) in accordance with the PRA under OMB control number 3170-0019. The estimated time per response was 30 minutes. 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 OMB control number.
Banks, Banking, Consumer protection, Credit, Credit unions, Federal Reserve System, Investigations, Law enforcement, National banks, Savings associations, State and local governments, Trade practices.
For the reasons set forth in the preamble, the Bureau of Consumer Financial Protection revises part 1082 to Chapter X in Title 12 of the Code of Federal Regulations to read as follows:
12 U.S.C. 5481
(a)
(2) Notice shall be provided to the Office of Enforcement and the Office of the Executive Secretary, or their successor offices, via electronic mail to
(3) On the same date that notice is provided to the Office of Enforcement and the Office of the Executive Secretary pursuant to paragraph (a)(1) of this section, a copy of the notice shall be sent to the relevant prudential regulator, if any, or the designee thereof, by mail or electronic mail.
(4) Notice shall be deemed to have been provided as of the date of transmitting or mailing the materials described in paragraph (c) of this section.
(5) The Office of Enforcement, or its successor entity, in consultation with a State Official, may provide, for good cause shown, an alternative deadline for the notice described in paragraph (a)(1) of this section.
(b)
(2) Notice shall be provided in accordance with the procedures set forth in paragraphs (a)(2) through (4) of this section.
(3) The Office of Enforcement, or its successor entity, in consultation with a State Official, may provide, for good cause shown, an alternative deadline for the notice described in paragraph (b)(1) of this section.
(c)
(i) The court or body in which the action is to be initiated;
(ii) The identity of the parties to the action;
(iii) The nature of the action to be initiated;
(iv) The anticipated date of initiating the action;
(v) The alleged facts underlying the action;
(vi) A contact name, electronic mail address, and phone number of an individual involved with the matter in the office of the State Official with whom the Bureau may consult;
(vii) A determination as to whether there may be a need to coordinate the prosecution of the action so as not to interfere with any action, including any rulemaking, undertaken by the Bureau, a prudential regulator, or another Federal agency; and
(viii) A statement by the State Official setting forth any limitations on the disclosure of the substance or fact of the notice to any person or entity outside of the recipient agency.
(2) The notice required under paragraphs (a) and (b) of this section shall further include a complete and unredacted copy of any complaint, motion for relief, or similar document that is the subject of the notice, in its form as of the date the notice is provided. To the extent the complaint, motion for relief, or similar document contains the information described in paragraph (c)(1) of this section, provision of the complaint, motion for relief, or similar document shall be deemed sufficient notice of that information.
(3) In the event that notice is provided after the initiation of an action, the written description shall also include the following, in addition to the information described in paragraph (c)(1) of this section:
(i) A brief description of any proceeding that occurred as a result of the initiation of the action, including any orders issued by a court or other body;
(ii) Any case number, matter number, or designation assigned to the action; and
(iii) Information on scheduled court or other administrative or regulatory proceedings.
(4) In the event that notice is provided after the initiation of an action, in addition to the requirements set forth in paragraph (c)(3) of this section, the notice shall further include a complete, unredacted copy of any document filed by any party in relation to the action and any orders issued by the court or other body.
(5) If the State Official, after providing the notice described in paragraphs (c)(1) and (c)(2) of this section, intends to file a complaint, motion for relief, or similar document that is materially different from the document included with the notice, the State Official shall provide a copy of that document prior to filing, in accordance with the method described in paragraph (a)(2) of this section.
(d)
(1) Intervene in the action as a party;
(2) Upon intervening,
(i) Remove the action to the appropriate United States district court, if the action was not originally brought there; and
(ii) Be heard on all matters arising in the action;
(3) Appeal any order or judgment, to the same extent as any other party in the proceeding may; and
(4) Otherwise participate in the action as appropriate.
(e)
(i) As required by law;
(ii) When the information is or becomes publicly available;
(iii) With the consent of the State Official; or
(iv) To another State or Federal government entity when necessary to protect the public interest, after consultation with the State Official who provided the notice.
(2) Provision of notice by a State Official and disclosure of information pursuant to paragraph (e)(1) of this section shall not be deemed a waiver of any applicable privilege.
(f)
Bureau of Consumer Financial Protection.
Interim final rule with request for public comment.
The Equal Access to Justice Act (EAJA or the Act) requires agencies
This interim final rule takes effect on June 29, 2012. Comments must be received on or before August 28, 2012 to be assured of consideration.
You may submit comments by any of the following methods:
•
•
John R. Coleman, Office of the General Counsel, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552; (202) 435-7254.
Originally enacted in 1980, EAJA provides that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 5 U.S.C. 504(a)(1). The Administrative Conference of the United States (ACUS) was charged with coordination of the procedural rules adopted by various agencies to implement EAJA. To carry out this responsibility, ACUS issued model rules implementing EAJA (46 FR 32900, June 25, 1981), after receiving public comment on draft model rules (46 FR 15895, March 10, 1981). ACUS published revised model rules in 1986 that reflected the amendments Congress made when it re-authorized the Act in 1985. 51 FR 16659 (May 6, 1986), previously
In preparing regulations implementing the Act, the Bureau has used the 1986 ACUS model rules as a point of departure, modifying them to put them in plain language, to reflect more recent amendments to the Act, and to make certain changes the Bureau believes are warranted for reasons explained in the following section-by-section analysis. Since the preamble to the draft model rules explained their formulation and the preamble to the final model rules summarized and responded to the public comments submitted concerning the draft rules, the Bureau does not repeat here the rationale of the model rules. Rather, the Bureau notes where its rule differs from the model rules and explains significant provisions, as follows:
1. The Bureau's rule is divided into three subparts, as are the model rules, and maintains the same sequence with the following exception: The Bureau's rule starts at § 1071.100 and omits model rule § 315.107, “Rulemaking on maximum rates for attorney fees,” and § 315.108, “Awards against other agencies.” The revised numbering causes Bureau § 1071.106 to correspond to model rule § 315.109.
2. Section 1071.100, “Purpose of this rule,” inserts a new paragraph (b), “When an eligible party will receive an award,” which reflects amendments to EAJA made by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996). This paragraph is modeled on the EAJA rules of the Federal Trade Commission (FTC), 16 CFR 3.81(a)(1)(ii), but includes additional language to clarify the circumstances under which the Bureau's notice of charges may constitute a demand. This clarifying language is consistent with the Congressional intent in promulgating SBREFA. Legislative history suggests that Congress intended the term “demand” as used in the SBREFA amendments to mean “an express written demand that leads directly to an adversary adjudication or civil action.”
3. Section 1071.102, “Proceedings covered,” is modified and simplified from model rule § 315.103 and identifies the specific proceedings before the Bureau that are covered by EAJA. Incorporation of paragraphs (b) and (c) of model rule § 315.103 into the Bureau rule is not necessary because it is clear which Bureau proceedings are covered by EAJA.
4. Section 1071.103(b) inserts paragraph (6), which does not appear in the corresponding model rule § 315.104(b), in order to conform with the SBREFA amendments to EAJA.
5. Section 1071.104, “Standards for awards,” inserts paragraph (b), which does not appear in the corresponding model rule § 315.105, in order to conform with the SBREFA amendments to EAJA. The provision in paragraph (b) of model rule § 315.105 was moved to § 1071.104(a)(2). The last sentence in paragraph (a)(1) is modeled on the comparable rule of the Department of the Treasury governing the standards for awards under EAJA, 31 CFR 6.5, and clarifies that although the Bureau bears the burden of proof that its position was substantially justified, the fact that the Bureau did not prevail in the underlying proceeding does not create a presumption that the its position was not substantially justified.
6. Unlike model rule § 315.106(b), the corresponding paragraph (b) of § 1071.105 does not specify a rate for attorney fees, but instead refers back to the corresponding statutory provision in EAJA that sets forth the maximum hourly rate for attorney fees. This modification is intended to eliminate the need to promulgate a revised rule whenever the statutory maximum is increased. Most recently, the maximum
7. Model rule § 315.107, “Rulemaking on maximum rates for attorney fees,” does not appear in the Bureau rule. Since frequent rulemaking on this subject is not foreseen, a rule concerning it is not deemed necessary.
8. Section 315.108 of the model rules, “Awards against other agencies,” does not appear in the Bureau rule because it is not anticipated that another agency of the United States will participate in an adversary proceeding before the Bureau. In the event another agency did so participate, it is anticipated that the adjudicative officer would take appropriate action in the absence of an express rule.
9. Section 1071.106, “Delegation of authority,” is a simplified version of the corresponding model rule, § 315.109.
10. Section 1071.200, “Contents of application,” is modeled on the corresponding FTC rule governing the contents of an application for recovery of awards under EAJA, 16 CFR 3.82(a), which provides a more comprehensive list of requirements than the corresponding model rule, § 315.201(a).
11. The provisions in paragraph (b) of model rule § 315.202 have been moved to § 1071.201(b) to consolidate the provisions relating to the net worth exhibit into a single section. The provisions in paragraph (b) of corresponding model rule § 315.202 regarding the presumptively public nature of the net worth exhibit can be found in § 1071.201(c).
12. Section 1071.202, “Documentation of fees and expenses,” is modified from the corresponding model rule, § 315.203, to conform with the SBREFA amendments to EAJA.
13. Section 1071.203, “When an application may be filed,” is modified from the corresponding model rule, § 315.204, to conform with the SBREFA amendments to EAJA.
14. Paragraph (c) of § 1071.203 defines the date of final Bureau disposition. This is significant for paragraph (a), which makes reference to final disposition. In particular, paragraph (a) reiterates the statutory provision, set forth at 5 U.S.C. 504(a)(2), that a party may file an application for an award within thirty days of the Bureau's final disposition of the adversary adjudication as to which the award is sought.
15. Section 1071.300, “Filing and service of documents,” incorporates the provisions of §§ 1081.111, 1081.112 and 1081.113 concerning service and filing in adjudication proceedings. The section also requires the applicant to serve a copy of the application for fees and expenses on the General Counsel of the Bureau.
16. Section 1071.304, “Settlement,” revises the corresponding model rule, § 315.305, to make explicit that no application for recovery of fees and expense may be filed if the settlement of the underlying proceeding provides that each side shall bear its own expenses.
17. Section 1071.306, “Decision,” is modified from the corresponding model rule, § 315.307, to conform with the SBREFA amendments to EAJA.
18. Section 1071.307, “Bureau review,” is modified from the corresponding model rule, § 315.308, so that Bureau review of an adjudicatory officer's decision concerning a fee application follows the same procedures as Bureau review of a hearing officer's decision in the underlying matter.
19. Section 1071.309, “Payment of award,” sets forth a 60 day deadline in which the Bureau must pay the amount awarded to the applicant.
The rule relates solely to agency procedure and practice and, thus, is not subject to the notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. 553(b). Although the rule is exempt from these requirements, the Bureau invites comment on it.
Because no notice of proposed rulemaking is required, these regulations are not a “rule” as defined by the Regulatory Flexibility Act, 5 U.S.C. 601(2). The regulations in this part do not contain any information collection requirement that requires the approval of OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
Administrative practice and procedure, Banking, Banks, Consumer protection, Credit, Credit unions, Equal access to justice, Law enforcement, National banks, Savings associations.
5 U.S.C. 504.
(a)
(b)
(1) It prevails in the adversary adjudication, unless the Bureau's position in the proceeding was substantially justified or special circumstances make an award unjust. Whether or not the position of the Bureau was substantially justified will be determined on the basis of the administrative record as a whole that is made in the adversary proceeding for
(2) The Bureau's demand is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with that decision, under all the facts and circumstances of the case, unless the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. “Demand” means the express final written demand made by the Bureau prior to initiation of the adversary adjudication, but does not include a recitation by the Bureau of the statutory penalty in the notice of charges or elsewhere when accompanied by an express demand for a lesser amount. The relief requested in the Bureau's notice of charges issued pursuant to 12 CFR 1081.200(b)(3) may constitute the Bureau's demand only where the notice of charges was not preceded by an express final written demand.
The Act applies to any adversary adjudication pending before the Bureau at any time after July 21, 2011.
The Act applies to all adjudicative proceedings under part 1081 as defined in § 1081.103.
(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 551(3). The applicant must show that it meets all conditions of eligibility set out in this subpart.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 employees; or
(5) Any other partnership, corporation, association, or public or private organization with a net worth of not more than $7 million and not more than 500 employees.
(6) For purposes of receiving an award for fees and expenses for defending against an excessive Bureau demand, any small entity, as that term is defined under 5 U.S.C. 601(6).
(c) For purposes of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated.
(d) An applicant who owns an unincorporated business will be considered an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.
(e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual or group of individuals, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate of that business for purposes of this part, unless the adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.
(a) For a prevailing party:
(1) An eligible prevailing applicant may receive an award for fees and expenses incurred after initiation of the adversary adjudication in connection with the entire adversary adjudication, or on a substantive portion of the adversary adjudication that is sufficiently significant and discrete to merit treatment as a separate unit, unless the position of the Bureau was substantially justified. The burden of proof that an award should not be made to an eligible prevailing applicant because the Bureau's position was substantially justified is on counsel for the Bureau. However, no presumption arises that the Bureau's position was not substantially justified simply because the Bureau did not prevail.
(2) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.
(b) For a party defending against an excessive demand:
(1) An eligible applicant will receive an award for fees and expenses incurred after initiation of the adversary adjudication related to defending against the portion of a Bureau demand that is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with that decision under all the facts and circumstances of the case.
(2) An award will be denied if the applicant has committed a willful violation of law or otherwise acted in bad faith or if special circumstances make an award unjust.
(a) Subject to the limitations in paragraph (b) of this section, awards will be based on rates customarily charged, in the locale of the hearing, by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant.
(b) No award for the fee of any attorney or agent under this rule may exceed the hourly rate specified in 5 U.S.C. 504(b)(1)(A). No award to compensate an expert witness may exceed the reasonable rate at which the Bureau pays witnesses with similar expertise. However an award may also include the reasonable expenses of the attorney, agent or witness as a separate item, if the attorney, agent or witness ordinarily charges clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the adjudicative officer shall consider the following:
(1) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in which the
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services provided.
(d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the services does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case.
(e) An award of fees or expenses under the Act is limited to fees and expenses incurred after initiation of the adversary adjudication and, with respect to excessive demands, the fees and expenses incurred in defending against the excessive portion of the demand.
The Director may delegate authority to take final action on matters pertaining to the Equal Access to Justice Act in particular cases.
An application for an award of fees and expenses under the Act shall contain the following:
(a) Identity of the applicant and the proceeding for which the award is sought;
(b) A showing that the applicant has prevailed; or, if the applicant has not prevailed, a showing that the Bureau's demand was substantially in excess of the decision of the adjudicative officer and was unreasonable when compared with that decision, under the facts and circumstances of that case;
(c) Identification of the Bureau position(s) in the proceeding that the applicant alleges was (were) not substantially justified; or, identification of the Bureau's demand that is alleged to be excessive and unreasonable and an explanation as to why the demand was excessive and unreasonable;
(d) A brief description of the type and purpose of the organization or business (unless the applicant is an individual).
(e) A statement of how the applicant meets the eligibility criteria of § 1071.103;
(f) The amount of fees and expenses incurred after the initiation of the adversary adjudication, or in the case of a claim for defending against an allegedly excessive demand, the amount of fees and expenses incurred after the initiation of the adjudicative proceeding attributable to the allegedly excessive portion of the demand;
(g) Any other matter the applicant wishes the Bureau to consider in determining whether and in what amount an award should be made; and
(h) A written verification under oath or under penalty of perjury that the information provided is true and correct, accompanied by the signature of the applicant or an authorized officer or attorney.
(a) The application shall also include a detailed exhibit showing that the applicant's net worth did not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this subpart. The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award.
(b) However, an applicant may omit this exhibit if:
(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section;
(2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a));
(3) In the case of an application for an award related to an allegedly excessive demand by the Bureau, it demonstrates that it is a small entity as that term is defined by 5 U.S.C. 601(6).
(c) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 522(b)(1) through (9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on Bureau counsel but need not be served on any other party to the proceeding. If the adjudicative officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be handled in accordance with the Bureau's established procedures under the Freedom of Information Act, 12 CFR subpart B.
The application shall be accompanied by full documentation of the fees and expenses incurred after initiation of the adversary adjudication, including the cost of any study, engineering report, test, or project for which an award is sought. With respect to a claim for fees and expenses involving an excessive demand by the Bureau, the application shall be accompanied by full documentation of the fees and expenses incurred after initiation of the adversary adjudication, including the cost of any study, engineering report, test, or project for which an award is sought attributable to the portion of the demand alleged to be excessive and unreasonable. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.
(a) An application may be filed not later than 30 days after the final disposition of the proceeding to which the application relates.
(b) If review or reconsideration is sought or taken of a decision, proceedings for the award of fees shall
(c) For purposes of this subpart,
(1) The date that the Director's final order issued pursuant to § 1081.405 is final and unappealable, both within the agency and to the courts; or
(2) The date that the Bureau issues any other final resolution of a proceeding, such as a consent agreement, settlement or voluntary dismissal, that is not subject to a petition for reconsideration.
(a) Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in proceedings under part 1081.
(b) In addition, a copy of each application for fees and expenses shall be served on the General Counsel of the Bureau.
(a) Within 30 days after service of an application, counsel representing the Bureau may file an answer to the application. Unless Bureau counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as consent to the award requested.
(b) If Bureau counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days and further extensions may be granted by the adjudicative officer upon joint request by Bureau counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of Bureau counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, Bureau counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 1071.305 of this part.
Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 1071.305 of this part.
Any party to a proceeding other than the applicant and Bureau counsel may file comments on an application within 30 days after it is served or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments.
The applicant and Bureau counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding or after the underlying proceeding has been concluded, in accordance with the Bureau's standard settlement procedures. If a prevailing party and Bureau counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement. If a proposed settlement of an underlying proceeding provides that each side shall bear its own expenses and the settlement is accepted, no application may be filed.
(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or Bureau counsel, or on his or her own initiative, the adjudicative officer may order further proceedings, such as an informal conference, oral argument, additional written submissions or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible.
(b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
The adjudicative officer shall issue a recommended decision on the application within 60 days after the time for filing a reply, or where further proceedings are held, within 60 days after completion of such proceedings.
(a) For a decision involving a prevailing party: The decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall include, if at issue, findings on whether the agency's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust.
(b) For a decision involving an allegedly excessive Bureau demand: The decision on the application shall include written findings and conclusions on the applicant's eligibility and an explanation of the reasons why the Bureau's demand was or was not determined to be substantially in excess of the underlying decision of the adjudicative officer and was or was not unreasonable when compared with that decision. That determination shall be based upon all the facts and circumstances of the case. The decision on the application shall also include, if at issue, findings on whether the applicant has committed a willful violation of law or otherwise acted in bad faith, or whether special circumstances make an award unjust.
Either the applicant or Bureau counsel may seek review of the recommended decision on the fee application by filing a notice of appeal under § 1081.402(a), or the Director may decide to review the decision on his or her own initiative, in accordance with § 1081.402(b). If neither the applicant nor Bureau counsel seeks review and the Director does not take review on his or her own initiative, the Director will adopt the recommended decision on the application as the final decision of the Bureau within 30 days of the issuance of the recommended decision. Whether to review a decision is a matter within the discretion of the Director. If review is taken, the Director will issue a final decision on the application or remand the application to the adjudicative officer for further proceedings.
Judicial review of final Bureau decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).
An applicant seeking payment of an award shall submit to the Bureau a copy of the Bureau's final decision granting the award, accompanied by a statement
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to address acquisitions using competitive procedures in which only one offer is received. This rule implements a DoD Better Buying Power initiative. The revisions to this rule are part of DoD's retrospective plan under Executive Order 13563 completed in August 2011.
Ms. Amy G. Williams, telephone 571-372-6106.
DoD's full plan can be accessed at
DoD published a proposed rule in the
Some of the other background events leading up to publication of this rule are summarized as follows:
• In 2007, an Acquisition Advisory (SARA) panel report discussed methods to encourage competition focused on longer solicitation periods as well as improved requirements generation and market research/industry communication.
• In 2008, the Office of Management and Budget and Office of Federal Procurement Policy issued a memorandum detailing agencies' efforts to improve competition where only one offer was received. These efforts involved such steps as limiting contract length, minimizing unique or brand name specifications, and enhancing acquisition planning.
• In 2010, the Government Accountability Office studied reasons why only one offer is received, and concluded that several factors contributed, such as a strong incumbent, restrictive Government requirements, and/or bundling of requirements into larger acquisitions.
The comment period closed on September 23, 2011, but was re-opened on September 27, 2011 (76 FR 59623) through October 7, 2011. DoD received comments on the proposed rule from 19 respondents.
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
1.
2.
3.
4. Two exceptions have been added at DFARS 215.371-4 (proposed at DFARS 215.371(e)):
• An exception to the 30-day resolicitation period has been added to address the application to small business set-asides.
• The final rule states that it does not apply to broad agency announcements.
5. Waivers are now addressed at DFARS 215.371-5 (proposed at DFARS 215.371(d)), but the coverage of waivers is otherwise unchanged.
6. The proposed statement at DFARS 215.403-1(c)(1)(B) has been modified to reference back to the procedures at DFARS 215.371-3 for ensuring a fair and reasonable price if only one offer is received. DFARS 215.371-3 makes it clear that adequate price competition, as described at FAR 15.403-1(c)(1)(ii), cannot be used for the purpose of determining that a price is fair and reasonable.
7. The rule no longer addresses acquisitions under FAR subpart 13.5, because that statutory authority has expired.
8. Statements have been added at DFARS 208.404(a) and 214.404-1(2) to specify clearly the deviation from the statements in the corresponding FAR sections.
This respondent also stated that adding transactional process time in all cases where only a single offer is received in response to a competitive solicitation is contrary to sound acquisition policy.
Several respondents stated that the proposed rule did not adequately address the process for amending the solicitation when only one offer is received due to flawed solicitation requirements, specifications, contract types, etc. One respondent stated that DoD should set forth guidelines and/or criteria for determining when and how a solicitation should be revised.
Current coverage at FAR 15.403-1(c) provides three circumstances in which a price is based on adequate price competition, for the purpose of deciding whether there is an exemption to the requirement for certified cost or pricing data:
• In the first circumstance, two or more responsible offerors, competing independently, submit priced offers that satisfy the Government's expressed requirement, if award will be made to the offeror whose proposal represents the best value where price is a substantial factor in source selection, and there is no finding that the price of the otherwise successful offeror is unreasonable. In this circumstance, there is a presumption of price reasonableness. Any finding that the price is unreasonable must be supported by a statement of the facts and approved at a level above the contracting officer.
• In the second circumstance, there was a reasonable expectation, based on market research, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation's expressed requirement, even though only one offer is received from a responsible offeror; and the determination that the proposed price is based on adequate price competition and is reasonable, must be approved at a level above the contracting officer. This standard for adequate price competition was added to the two pre-existing standards in the FAR in October 1995 (FAC 90-32) as a result of sections 1202 and 1251 of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 105-355). These sections required the FAR to provide clear standards for application of the exceptions to the requirement for submission of cost or pricing data (including adequate price competition).
• In the third circumstance, price analysis clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or similar items, adjusted to reflect changes in market conditions under contracts that resulted from adequate price competition. Note that the requirement that price analysis be based on contracts that resulted from adequate price competition does not cover buys in which the price is determined fair and reasonable based on certified cost or pricing data from previous production buys. This standard has been in the regulations since May 1964, when adequate price competition was first addressed in the Armed Services Procurement Regulation (3-807.1(b)).
Other respondents wanted to preserve the exception at FAR 15.403-1(c)(1)(ii) as a valid exemption from the requirement for certified cost or pricing data, while some acknowledged the need for better enforcement of FAR 15.403-1(c)(1)(ii)(B), i.e., the need to determine at a level above the contracting officer that the price is reasonable.
One respondent had reservations about the apparent elimination of agency discretion to find adequate price competition when a single offer is received, following the expectation of multiple offers. The respondent expressed concern that because the FAR does not reflect the same approach, there is a risk of confusion in the acquisition community. This respondent cited a GAO 2010 study, which recommended case-by-case analysis of single offers, not elimination of the discretion to find adequate price competition when a single offer is received. This respondent also quoted a 2009 DoD statement that “the receipt of a single offer does not necessarily indicate a lack of competition (DoD's 2009 Competition Report).
Several respondents stated that the current FAR reflects the processes required of the contracting officer to protect DoD's interests in a fair and reasonable price in those situations where competition was expected, but, for whatever reason, is not achieved.
Another respondent considered that the requirement at FAR 15.403-1(c)(1)(ii) has been misused, because contracting officers confuse the adequate price competition definition of expected competition in the exception as also covering the adequate price competition pricing method of comparing proposals in FAR 15.404-1(b)(2)(i). FAR 15.404-1(b)(2)(i) states that one price analysis technique is “Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price (see FAR 15.403-1(c)(1)).” The respondent recommended that we clarify the need for separate price analysis before concluding that the standard for adequate price competition has been met.
Similarly, another respondent recommended more rigorous enforcement of the existing price reasonableness test in FAR 15.403-1(c)(1)(ii) and (iii) for adequate price competition, without further regulatory change to prohibit DoD contracting officers from using the exception. Another respondent concurred that the problem is not the tool but the improper use of the tool. The respondent recommended maintaining the standards at FAR 15.403-1(c)(1)(ii). A third respondent stated that current methods are adequate to attain the desired benefit, but without “completely undercutting the existing acquisition process.”
• To take the required actions to promote competition; and
• To ensure, if the steps to promote competition still do not result in more than one offer, a fair and reasonable price and compliance with the statutory requirements for certified cost or pricing data, unless an exception applies.
The proposed rule statement that the circumstance of “reasonable expectation * * * that two or more offerors, competing independently, would submit priced offers,” as further described at FAR 15.403-1(c)(1)(ii), does not constitute adequate price competition if only one offer is received” is not included in the final rule. The second element in the statement of policy, which reflects one of the ultimate goals of the proposed rule, shifts the focus from determining the existence of “adequate price competition” to achieving a “fair and reasonable price.”
There are two citations in the FAR that have contributed to the confusion regarding the relationship between the determination that adequate price competition exists and the determination that a price is fair and reasonable.
Until a recent technical amendment, FAR 15.403-1(c)(1)(ii), which addresses “only one offer,” included as a standard for adequate price competition the requirement that “The determination that the proposed price is based on adequate price competition, is reasonable, and is approved at a level above the contracting officer;”. The technical amendment restored the original wording, which had become inadvertently unclear in the process of a major rewrite of FAR part 15, to read as follows:
“The determination that the proposed price is based on adequate price competition and is reasonable has been approved at a level above the contracting officer;”
This makes it unambiguous that it is the price that must be reasonable, not the determination, and that this determination of reasonable price is an essential part of the determination that adequate price competition exists.
However, FAR 15.404-1(b)(2)(i) makes the statement that “Normally, adequate price competition establishes a fair and reasonable price (see FAR 15.403-1(c)(1)).” This statement is overly broad. Although “adequate price competition” and “fair and reasonable price” are inextricably linked, only adequate price competition as described at FAR 15.403-1(c)(1)(i) can be used as the basis to determine that the price is fair and reasonable. FAR 15.403-1(c)(1)(i) involves the receipt of offers from two or more responsible sources, competing independently. That this is what was intended at FAR 15.404-1(b)(2)(i) is clear from the lead-in sentence, which addresses the comparison of proposed prices received in response to the solicitation as a price analysis technique.
The perception that “based on adequate price competition” can be used as sufficient basis to determine that a price is fair and reasonable is clearly untenable for the standards in FAR 15.403-1(c)(1)(ii) and (iii), both of which require a determination of price reasonableness as part of the determination that adequate price competition exists. Since there is no adequate price competition under FAR 15.403-1(c)(1)(ii) until a level above the contracting officer has found the price to be “reasonable,” the determination that the price is fair and reasonable in the case of only one offer cannot be based on “adequate price competition,” as in the case when multiple offers are received, but must be based on another type of cost or price analysis. The cost or price analysis in the case of paragraph (ii) is not subject to the particular restrictions imposed in paragraph (iii).
The respondents, therefore, have a point when they state that the problem with the determination that “only one offer” can constitute adequate price competition lies primarily in the misuse of that determination as a basis to assume that the price is fair and reasonable.
Therefore, DoD has revised the final rule to emphasize that, although FAR 15.403-1(c)(1)(ii) may be used to determine that adequate price competition exists for purposes of an exemption from the requirement to obtain certified cost or pricing data, that determination of adequate price competition can only be made in conjunction with the determination that
Another respondent stated that the rule should state explicitly that unless a waiver is granted or it is a commercial item, the data would always be certified cost or pricing data. This respondent recommended a specific change in the final rule, adding a new paragraph DFARS 215.371(c)(2)(i) to specifically add the requirement to “Determine if an exception to certified cost or pricing data is necessary and/or applicable.”
Further, another respondent stated that submission of other than certified cost or pricing data should never be a substitute for the submission of certified cost or pricing data. Accordingly, the respondent believed that if only one offer is received, then the submission of certified cost or pricing data should be required in order to conclude that a fair and reasonable price has been established.
Similarly, another respondent objected that the proposed rule effectively shifts the burden for price reasonableness to the offeror, by requiring them to provide either certified cost or pricing data or data other than certified cost or pricing data automatically, in response to several new clauses authorizing the contracting officer to demand such data when a single offer is received. According to the respondent, this rule creates the de facto presumption that any single offer outcome is unreasonable. This respondent recommended that supporting data should be restricted to pricing data and prohibit the contracting officer from requesting cost data or profit figures (per the SARA panel). The respondent further stated that if cost data is necessary, it should not require certification.
Several respondents feared a negative impact because of the proposed rule requirement for submission of cost or pricing data when only one offer is received.
One respondent stated that the uncertainty at the time of offer as to whether cost or pricing data will later be required, imposes an unanticipated burden of gathering such data. The respondent was concerned that this uncertainty may increase prices, drive away competitors, especially nontraditional suppliers, from submitting offers, and thus increase the number of single offers received.
Another respondent stated that the demand for additional data will add to the enormous industry bid and proposal cost burden. The respondent further stated that requiring cost or pricing data is contrary to sound acquisition policy
The provision at DFARS 252.215-7008 has been revised in the final rule so that it no longer automatically requires additional data if only one offer is received. The provision notifies offerors that the contracting officer may request additional cost or pricing data if only one offer was received and if additional cost or pricing data is required in order to determine whether the price is fair and reasonable. In addition, the provision has been revised so that an offeror, by submission of its offer, agrees to provide any data requested by the contracting officer in accordance with FAR 52.215-20.
Similarly, another respondent recommended the $10 million threshold in order to focus the requirements on the competitions in which fostering effective competition would have the most beneficial impact to DoD and for which a failure to perform adequate cost or price analysis of single offers could result in the most detriment to DoD.
A third respondent provided the rationale that, especially for procurement of services, for many procurements of less than $10 million associated with re-competes, other contractors determine that based on a cost-benefit analysis, the cost of writing and submitting a proposal exceed the potential benefits associated with the acquisition.
• 41 U.S.C. 1901 requires that in order to “promote efficiency and economy in contracting and to avoid unnecessary burdens,” the FAR shall provide simplified procedures for acquisitions not greater than the simplified acquisition threshold; and
• It is simply not feasible to apply the rule to the huge volume of very low dollar value buys, a large majority of which are conducted electronically.
The final rule continues to allow the waiver authority to be delegated to one level above the contracting officer (which would include the PARC). An approval one level above the contracting officer ensures a layer of review and provides a mechanism for checks and balances. Waiver of the 30-day resolicitation period does not relieve the contracting officer of the need to determine the price fair and reasonable.
Another respondent provided an example of an agency that frequently posts RFQs using the GSA eBuy tool for fewer than 30 days. The RFQs are available to all vendors on the relevant GSA schedule. Although multiple responses are generally received, occasionally there is only one quote received. According to this respondent, lengthening the RFQ response time to 30 days would impede the goal of simplifying and streamlining the procurement process.
RFQs using the GSA eBuy tool are frequently posted for less than 30 days and generally receive more than one response. The final rule still permits requests for quotation to be solicited for fewer than 30 days, and only requires a resolicitation for 30 days (or a waiver) in those cases when only one offer was received. Market research can provide contracting officers the insight required to determine the solicitation response time required to ensure effective competition without needlessly lengthening the RFQ response time to 30 days. In many cases, market research will indicate that multiple offers will be received in response to an RFQ open for under 30 days. In other cases, market research will indicate that contracting officers need to keep RFQs open for 30 days to encourage effective competition. Finally, market research will indicate that additional time will likely not result in additional offers, and provide contracting officers with the rationale to support a waiver of the resolicitation requirement.
The final rule provides specific guidance to DoD contracting officers when only one offer is received. The final rule augments existing DoD guidance on FSS competitions. The final rule also provides additional guidance to DoD contracting officers that govern the establishment of price in one offer competitions. The final rule is consistent with the existing requirements for competitions under the FSS program and with the standard for determining fair and reasonable prices.
Several respondents recommended that the proposed rule should not apply to commercial items (DFARS part 212), for the following reasons:
The FAR subpart 13.5 test program is no longer in effect. The final rule deletes all references to the FAR subpart 13.5 test program.
Various respondents did not agree with application of the proposed rule to DFARS part 216.
Another respondent stated that the rule should not apply to multiple-award contracts when only two or three contractors were awarded the base contract, and one or more of the base contract awardees is excluded from submitting a proposal due to an organizational conflict of interest. In such case, only receiving one proposal will not be the result of inadequate competition and 30-day resolicitation would interfere with deliveries without resulting in increased competition.
The intent still is to ensure that prices and/or costs obtained by the offeror are fair, reasonable, and in the best interest of the Government, even by small businesses. Based on market research, the contracting officer is reasonably expected not to set-aside a requirement for competition, unless there is a “reasonable expectation that offers will be received from two or more small business concerns and that award will be made at a fair market price.” If only one acceptable offer is received from a competitive set-aside, then the procedures at DFARS 215.371-3 for determination of a fair and reasonable price apply equally to small business set-asides.
Two respondents questioned the Initial Regulatory Flexibility Analysis (IRFA) and made recommendations for reducing the impact on small business.
With regard to impact on commercial and low-dollar value contracts sought by small businesses, the rule does not apply at all to contracts with dollar values below the simplified acquisition threshold. For acquisitions above the simplified acquisition threshold, the contracting officer will only request the data necessary to determine a fair and reasonable price. No certified cost or pricing data is required for commercial items. A small business that is offering items to the Government in quantities that exceed the simplified acquisition threshold and are not commercial items should have an accounting system adequate to provide cost or pricing data upon request.
• Set-asides for small business; and
• Acquisitions using full and open competition procedures that result in single offers from small businesses.
The final rule does not include any exception for when the single offer comes from a small business, because it is important to increase competition and allow all businesses sufficient time to respond to a solicitation, which could be of benefit to other small businesses.
In all cases, it is still essential to determine that the price is fair and reasonable.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
A Final Regulatory Flexibility Analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule implements the initiative on promoting real competition that was presented by the Under Secretary of Defense for Acquisition, Technology, & Logistics in a memorandum dated November 3, 2010. The objective of the rule is to promote competition and ensure fair and reasonable prices, by implementing DoD policy with regard to acquisitions when only one offer is received to ensure that—
• Adequate time is allowed for receipt of offers;
• The requirements do not present unnecessary barriers to competition; and
• Cost or pricing data is obtained and negotiations are held, as necessary, to obtain a fair and reasonable price, when only one offer is received in response to a competitive solicitation and the contracting officer cannot determine that the offered price is fair and reasonable.
Two respondents questioned the Initial Regulatory Flexibility Analysis and made recommendations for reducing the impact on small business. See section II.B.7 for analysis of public comments on regulatory flexibility.
No comments were filed by the Chief Counsel for Advocacy of the Small Business Administration.
The proposed rule provided the following data: that it would affect all small entities that respond to a Federal solicitation for proposals, valued at more than $150,000, and no other offer is received.
The impact of this rule has been reduced significantly by eliminating the requirement for additional data and subsequent negotiation if the contracting officer can determine that the offered price is fair and reasonable and that adequate price competition exists (approved at one level above the contracting officer).
The rule imposes no reporting, recordkeeping, or other information collection requirements. The submission of certified cost or pricing data or other than certified cost or pricing data is covered in FAR subpart 15.4 and associated clauses in FAR 52.215, OMB clearances 9000-013.
There are no known significant alternatives to the rule that would adequately implement the DoD policy. DoD considered higher thresholds for applicability of the rule (cost or pricing data threshold or $10 million), but determined that higher thresholds would be detrimental to the effectiveness of the rule. There is no significant economic impact on small entities. The impact of this rule on small business is expected to be predominantly positive, by allowing more opportunity for competition.
The rule does not impose any additional information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). The submission of certified cost or pricing data or data other than certified cost or pricing data required to assess whether a price is fair and reasonable is covered in FAR subpart 15.4 and associated clauses in FAR 52.215, OMB clearance number 9000-013, in the amount of 10,101,684 hours.
Government procurement.
Therefore, 48 CFR parts 205, 208, 212, 214, 215, 216, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(S-70) When using competitive procedures, if a solicitation allowed fewer than 30 days for receipt of offers and resulted in only one offer, the contracting officer shall resolicit, allowing an additional period of at least 30 days for receipt of offers, except as provided in 215.371-4 and 215.371-5.
41 U.S.C. 1303 and 48 CFR chapter 1.
(a)(i) In accordance with 208.405-70(c)(2), if only one offer is received in response to an order exceeding $150,000 that is placed on a competitive basis, the procedures at 215.371 apply.
(ii) Departments and agencies shall comply with the review, approval, and reporting requirements established in accordance with subpart 217.78 when placing orders for supplies or services in amounts exceeding the simplified acquisition threshold.
(iii) When a schedule lists both foreign and domestic items that will meet the needs of the requiring activity, the ordering office must apply the procedures of part 225 and FAR part 25, Foreign Acquisition. When purchase of an item of foreign origin is specifically required, the requiring activity must furnish the ordering office sufficient information to permit the determinations required by part 225 and FAR part 25 to be made.
(c)(1) An order exceeding $150,000 is placed on a competitive basis only if the contracting officer provides a fair notice of the intent to make the purchase, including a description of the supplies to be delivered or the services to be performed and the basis upon which the contracting officer will make the selection, to—
(i) As many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that offers will be received from at least three contractors that can fulfill the requirements, and the contracting officer—
(A)(
(
(B) Ensures all offers received are fairly considered; or
(ii) All contractors offering the required supplies or services under the applicable multiple award schedule, and affords all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.
(2) If only one offer is received, follow the procedures at 215.371.
(d) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
41 U.S.C. 1303 and 48 CFR chapter 1.
(c) When using competitive procedures, if only one offer is received, the contracting officer shall follow the procedures at 215.371.
(f) * * *
(iv) * * *
(F) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
41 U.S.C. 1303 and 48 CFR chapter 1.
(2) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
If an invitation for bids allowed fewer than 30 days for receipt of offers, and resulted in only one offer, the contracting officer shall cancel and resolicit, allowing an additional period of at least 30 days for receipt of offers, as provided in 215.371.
(1) The contracting officer shall make the written determinations required by FAR 14.404-1(c) and (e)(1).
(2) If only one offer is received, follow the procedures at 215.371 in lieu of the procedures at FAR 14.404-1(f).
(b) For acquisitions that exceed the simplified acquisition threshold, if only one offer is received, follow the procedures at 215.371.
41 U.S.C. 1303 and 48 CFR chapter 1.
It is DoD policy, if only one offer is received in response to a competitive solicitation—
(a) To take the required actions to promote competition (see 215.371-2); and
(b) To ensure that the price is fair and reasonable (see 215.371-3) and to comply with the statutory requirement for certified cost or pricing data (see FAR 15.403-4).
Except as provided in sections 215.371-4 and 215.371-5, if only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer shall—
(a) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502(b) and 11.002); and
(b) Resolicit, allowing an additional period of at least 30 days for receipt of proposals.
(a) If there was “reasonable expectation …that two or more offerors, competing independently, would submit priced offers” but only one offer is received, this circumstance does not constitute adequate price competition unless an official at one level above the contracting officer approves the determination that the price is reasonable (see FAR 15.403-1(c)(1)(ii)).
(b) Except as provided in section 215.371-4(a), if only one offer is received when competitive procedures were used and the solicitation allowed at least 30 days for receipt of proposals (unless the 30-day requirement is not applicable in accordance with 215.371-4(b) or has been waived in accordance with section 215.371-5), the contracting officer shall—
(1) Determine through cost or price analysis that the offered price is fair and reasonable and that adequate price competition exists (with approval of the determination at one level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies (see FAR 15.403-1(c) and 15.403-4). In these circumstances, no further cost or pricing data is required; or
(2)(i) Obtain from the offeror cost or pricing data necessary to determine a fair and reasonable price and comply with the requirement for certified cost or pricing data at FAR 15.403-4, in accordance with FAR provision 52.215-20. For acquisitions that exceed the cost or pricing data threshold, if no exception at FAR 15.403-1(c) applies, the cost or pricing data shall be certified; and
(ii) Enter into negotiations with the offeror as necessary to establish a fair and reasonable price. The negotiated price should not exceed the offered price.
(a)(1) The requirements at sections 215.371-2 and 215.371-3 do not apply to acquisitions—
(i) At or below the simplified acquisition threshold;
(ii) In support of contingency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack; or
(iii) Of basic or applied research or development, as specified in FAR 35.016(a), that use a broad agency announcement.
(2) The applicability of an exception in paragraph (a)(1) of this section does not eliminate the need for the contracting officer to seek maximum practicable competition and to ensure that the price is fair and reasonable.
(b)(1) The requirements at section 215.371-2 do not apply to small business set-asides under FAR subpart 19.5 or set-asides under the HUBZone Program (see FAR 19.1305(c)), the Service-Disabled Veteran-Owned Small Business Procurement Program (see FAR 19.1405(c)), or the Woman-Owned Small Business Program (see FAR 19.1505(d)).
(2) The requirements at section 215.371-3 do apply to such set-asides.
(a) The head of the contracting activity is authorized to waive the requirement at 215.371-2 to resolicit for an additional period of at least 30 days.
(b) This waiver authority cannot be delegated below one level above the contracting officer.
(c)
(A) For acquisitions under dual or multiple source programs—
(
(
(
(
(B) If only one offer is received in response to a competitive solicitation, see 215.371-3.
(3) Use the provision at 252.215-7007, Notice of Intent to Resolicit, in competitive solicitations that will be solicited for fewer than 30 days, unless an exception at 215.371-4 applies or the requirement is waived in accordance with 215.371-5.
(4)(i) Use the provision at 252.215-7008, Only One Offer, in competitive solicitations, unless an exception at 215.371-4(a)(1) applies.
(ii) In solicitations that include 252.215-7008, Only One Offer, also include the provision at FAR 52.215-20, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, with any appropriate alternate as prescribed at FAR 15.408-1, but that provision will only take effect as specified in 252.215-7008.
(d) When using the procedures in this subsection—
(1) The contracting officer should keep contractor submission requirements to a minimum;
(2) The contracting officer may use streamlined procedures, including oral presentations;
(3) If only one offer is received, the contracting officer shall follow the procedures at 215.371.
(4) The competition requirements in FAR part 6 and the policies in FAR subpart 15.3 do not apply to the ordering process, but the contracting officer shall consider price or cost under each order as one of the factors in the selection decision; and
(5) The contracting officer should consider past performance on earlier orders under the contract, including quality, timeliness, and cost control.
(S-70) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
As prescribed at 215.408(3), use the following provision:
This solicitation provides offerors fewer than 30 days to submit proposals. In the event that only one offer is received in response to this solicitation, the Contracting Officer may cancel the solicitation and resolicit for an additional period of at least 30 days in accordance with 215.371-2.
As prescribed at 215.408(4), use the following provision:
(a) The provision at FAR 52.215-20, Requirements for Certified Cost or Pricing Data and Data other Than Certified Cost or Pricing Data, with any alternate included in this solicitation, does not take effect unless the Contracting Officer notifies the offeror that—
(1) Only one offer was received; and
(2) Additional cost or pricing data is required in order to determine whether the price is fair and reasonable or to comply with the statutory requirement for certified cost or pricing data (10 U.S.C. 2306a and FAR 15.403-3).
(b) Upon such notification, the offeror agrees, by submission of its offer, to provide any data requested by the Contracting Officer in accordance with FAR 52.215-20.
(c) If negotiations are conducted, the negotiated price should not exceed the offered price.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update the form used by contractors to request shipping instructions and the associated contract clause and clause prescription to cover both commercial and Government bills of lading, and to relocate the coverage within the DFARS.
Ms. Meredith Murphy, Procurement Analyst, telephone 571-372-6098.
DoD published a proposed rule in the
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule affects the certification and information collection requirements in the clause at DFARS 252.247-7028 (formerly DFARS 252.242-7003), Application for U.S. Government Shipping Documentation/Instructions, and the associated DD form 1659 (same title as the clause), currently approved under OMB Control Number 0704-0250, titled DFARS Part 242, Contract Administration and Audit Services, in the amount of 276,773 hours, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because only minor changes in terminology are being made. There are no substantive changes made either to the form or the associated clause at DFARS 252.247-7028 (formerly 252.242-7003). No public comments were received on the paperwork impact in response to the proposed rule.
Government procurement.
Therefore, 48 CFR parts 212, 242, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(f) * * *
(iv) * * *
(P) Use the clause at 252.247-7028, Application for U.S Government Shipping Documentation/Instructions, as prescribed in 247.207.
41 U.S.C. 1303 and 48 CFR chapter 1.
(h)
(i) Procedures for the contractor to obtain bills of lading are in the clause at 252.247-7028, Application for U.S. Government Shipping Documentation/Instructions.
(ii) The term “commercial bills of lading” includes the use of any commercial form or procedure.
(1) Use the clause at 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer, in solicitations and contracts for carriage in which a motor carrier, broker, or freight forwarder will provide or arrange truck transportation services that provide for a fuel-related adjustment.
(2) Use the clause at 252.247-7028, Application for U.S. Government Shipping Documentation/Instructions, when shipping under Bills of Lading and Domestic Route Order under FOB origin contracts, Export Traffic Release regardless of FOB terms, or foreign military sales shipments.
As prescribed in 247.207, use the following clause:
(a) Except as provided in paragraph (b) of this clause, the Contractor shall request bills of lading by submitting a DD Form 1659, Application for U.S. Government Shipping Documentation/Instructions, to the—
(1) Transportation Officer, if named in the contract schedule; or
(2) Contract administration office.
(b) If an automated system is available for shipment requests, use service/agency systems (e.g., Navy's Global Freight Management-Electronic Transportation Acquisition (GFM-ETA) and Financial Air Clearance Transportation System (FACTS) Shipment Processing Module, Air Force's Cargo Movement Operations System, DCMA's Shipment Instruction Request (SIR) E-tool, and DLA's Distribution Standard System Vendor Shipment Module in lieu of DD Form 1659.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the applicability to commercial items of DoD policies relating to the use of material containing hexavalent chromium.
Mr. Dustin Pitsch, telephone 571-372-6090.
DoD published a final rule (DFARS Case 2009-D004) in the
DoD published a proposed rule in the
DoD reviewed the public comment in the development of the final rule, which is discussed as follows.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR part 212, 244, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(f) * * *
(iv) * * *
(G) Use the clause at 252.223-7008, Prohibition of Hexavalent Chromium, as prescribed at 223.7306.
Use the clause at 252.244-7000, Subcontracts for Commercial Items and Commercial Components (DoD Contracts), in solicitations and contracts for supplies or services other than commercial items that contain any of the clauses listed in the clause at 252.244-7000.
As prescribed in 244.403, use the following clause:
In addition to the clauses listed in paragraph (c) of the Subcontracts for Commercial Items clause of this contract (Federal Acquisition Regulation 52.244-6), the Contractor shall include the terms of the following clauses, if applicable, in subcontracts for commercial items or commercial components, awarded at any tier under this contract:
(a) 252.223-7008, Prohibition of Hexavalent Chromium (MAY 2011), if the subcontract is for supplies, maintenance and repair services, or construction materials.
(b) 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals (JUN 2012) (10 U.S.C. 2533b), if flow down is required in accordance with paragraph (e) of DFARS clause 252.225-7009.
(c) 252.225-7039, Contractors Performing Private Security Functions (JUN 2012) (Section 862 of Pub. L. 110-181, as amended by section 853 of Pub. L. 110-417 and sections 831 and 832 of Pub. L. 111-383), if the subcontract will be performed in areas of contingency operations, complex contingency operations, or other military operations or exercises designated by the Combatant Commander.
(d) 252.227-7015, Technical Data—Commercial Items (DEC 2011), if applicable (see 227.7102-4(a)), if flow down is required in accordance with paragraph (e) of DFARS clause 252.227-7015.
(e) 252.227-7037, Validation of Restrictive Markings on Technical Data (JUN 2012), if applicable (see 227.7102-4(c)), if the subcontract or supplier at any tier requires the delivery of technical data.
(f) 252.236-7013, Requirement for Competition Opportunity for American Steel Producers, Fabricators, and Manufacturers (JAN 2009) (Pub. L. 110-329, Division E, Section 108), if the subcontract involves the acquisition of steel as a construction material.
(g) 252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84), if the subcontract may require subcontractor personnel to interact with detainees in the course of their duties.
(h) 252.237-7019, Training for Contractor Personnel Interacting with Detainees (SEP 2006) (Section 1092 of Pub. L. 108-375), if the subcontract may require subcontractor personnel to interact with detainees in the course of their duties.
(i) 252.246-7003, Notification of Potential Safety Issues (JAN 2007), if flow down is required in accordance with paragraph (f) of DFARS clause 252.246-7003.
(j) 252.247-7023, Transportation of Supplies by Sea (MAY 2002) (10 U.S.C. 2631), if flow down is required in accordance with paragraph (h) of DFARS clause 252.247-7023.
(k) 252.247-7024, Notification of Transportation of Supplies by Sea (MAR 2000) (10 U.S.C. 2631), if flow down is required in accordance with paragraph (b) of DFARS clause 252.247-7024.