Agricultural Research Service
Forest Service
Rural Business-Cooperative Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Navy Department
Pipeline and Hazardous Materials Safety Administration
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Drug Enforcement Administration
Parole Commission
Employment and Training Administration
Trade Representative, Office of United States
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in September 2012. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.
Effective September 1, 2012.
Catherine B. Klion (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for September 2012.
The September 2012 interest assumptions under the benefit payments regulation will be 0.75 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for August 2012, these interest assumptions represent a decrease of 0.25 percent in the immediate annuity rate and are otherwise unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during September 2012, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a safety zone for an annual fireworks event in the Captain of the Port Detroit zone from 9:15 p.m. to 10 p.m. on August 18, 2012. This action is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after fireworks events. During the aforementioned period, the Coast Guard will enforce restrictions upon, and control movement of, vessels in a specified area immediately prior to, during, and immediately after fireworks events. During the enforcement period, no person or vessel may enter the safety zone without permission of the Captain of the Port.
The regulations in 33 CFR 165.941 will be enforced from 9:15 p.m. to 10 p.m. on August 18, 2012.
If you have questions on this notice, call or email LT Adrian Palomeque, Prevention, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207; telephone (313) 568-9508, email
The Coast Guard will enforce the safety zone listed in 33 CFR 165.941, Safety Zones; Annual Fireworks Events in the Captain of the Port Detroit Zone, at the following date and times for the following event:
(1)
Under the provisions of 33 CFR 165.23, entry into, transiting, or anchoring within this safety zone during the enforcement period is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. Vessels that wish to transit through the safety zone may request permission from the Captain of the Port Detroit. Requests must be made in advance and approved by the Captain of Port before transits will be authorized. Approvals will be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF-FM. The Coast Guard will give notice to the public via Local Notice to Mariners and VHF radio broadcasts that the regulation is in effect.
This notice is issued under authority of 33 CFR 165.23 and 5 U.S.C. 552(a). If the Captain of the Port determines that this safety zone need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the safety zone.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone encompassing a portion of the Duluth Harbor Basin, Northern Section, including the Duluth Entry. This safety zone is intended to help protect participants, event safety personnel, boaters and spectators during the Superior Man Triathlon.
This rule is effective from 6 a.m. to 8:30 a.m. on August 26, 2012.
Documents mentioned in this preamble are part of docket [USCG-2012-0729]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Judson A Coleman, Marine Safety Unit Duluth U.S. Coast Guard; telephone (218) 720-5286 ext 111, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect participants, spectators, and vessels from the hazards associated with the Superior Man Triathlon, which are discussed further below.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On August 26, 2012, the inaugural Superior Man Triathlon will occur along the Bay of Lake Superior. The 1.2 mile swim leg of the triathlon will travel from the Vista Fleet to the Bayfront Festival Park. The Captain of the Port Duluth has determined that the swim leg of the triathlon poses a danger to the boating public. Thus, pursuant to the authority in 33 U.S.C. 1231 and 33 CFR 1.05-1(f), the Captain of the Port Duluth is establishing a temporary safety zone to protect participants, event safety personnel, boaters, and spectators during the Superior Man Triathlon.
For the reasons stated in the preceding paragraph, the Captain of the Port is establishing a temporary safety zone. This temporary safety zone will encompass all waters of Superior Bay, including the Duluth Entry encompassed in an imaginary line beginning at point 46 46′36.1236″ N 092 06′06.987″ W, running southeast to 46 46′32.7534″ N 092 06′01.7382″ W, running northeast to 46 46′45.9228″ N 092 05′45.1818″ W, running northwest to 46 46′49.4718″ N 092 05′49.349″ W and finally running southwest to the original point.
This safety zone will be in effect and enforced on August 26, 2012 from 6 a.m. to 8:30 a.m.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This safety is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small, will be enforced for only two and a half hours, and is expected to have no impact on commercial vessel traffic.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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.
(1) This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Duluth Harbor Basin, Northern Section from 6 a.m. to 8:30 a.m. on August 26, 2012.
(2) This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone will be in effect, and thus subject to enforcement, for only two and a half hours early in the day. Vessel traffic may be allowed to pass through the zone with the permission of the Captain of the Port. Before the enforcement of the zone, the Coast Guard intends on issuing local Broadcast Notice to Mariners so that mariners can plan accordingly.
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. 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 the person listed in the
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 will not call for a 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 determined that this rule does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires
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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
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 determined 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 rule involves establishment of a safety zone, and, therefore, it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping, Security measure, 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 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Marine Safety Unit Duluth or his designated representative.
(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative will be aboard either a Coast Guard or Coast Guard auxiliary vessel. The Captain of the Port representative may be contacted via VHF channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Marine Safety Unit Duluth or his on-scene representative to request permission to do so. Vessel operators must comply with all directions given to them by the Captain of the Port, Marine Safety Unit Duluth or his on-scene representative.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 25 chemical substances which were the subject of premanufacture notices (PMNs). Fourteen of these chemical substances are subject to TSCA section 5(e) consent orders issued by EPA. This action requires persons who intend to manufacture, import, or process any of these 25 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.
This rule is effective on October 15, 2012. For purposes of judicial
Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before September 14, 2012 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0450, by one of the following methods:
•
•
•
You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this rule. Potentially affected entities may include, but are not limited to:
• Manufacturers, importers, or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in § 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. 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.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is promulgating these SNURs using direct final procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture, import, or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. Additional rationale and background to these rules are more fully set out in the preamble to EPA's first direct final SNUR published in the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. Persons who must report are described in § 721.5.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the 25 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 25 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) number (if assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) consent order or, for non-section 5(e) SNURs, the basis for the SNUR (i.e., SNURs without TSCA section 5(e) consent orders).
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).
• CFR citation assigned in the regulatory text section of this rule.
The regulatory text section of this rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (i.e., limits on manufacture and importation volume) and other uses designated in this rule may be claimed as CBI. Unit IX. discusses a procedure companies may use to ascertain whether a proposed use constitutes a significant new use.
This rule includes 14 PMN substances (P-10-405, P-10-485, P-11-48, P-11-63, P-11-160, P-11-181, P-11-203, P-11-247, P-11-384, P-11-557, P-11-646, P-12-30, P-12-31, and P-12-32) that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that activities associated with the PMN substances may present unreasonable risk to human health or the environment. Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “5(e) SNURs” on these PMN substances are promulgated pursuant to § 721.160, and are based on and consistent with the provisions in the underlying consent orders. The 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.
This rule also includes SNURs on 11 PMN substances (P-11-411, P-11-412, P-11-413, P-11-414, P-12-35, P-12-87, P-12-149, P-12-167, P-12-182, P-12-260, and P-12-275) that are not subject to consent orders under TSCA section 5(e). In these cases, for a variety of reasons, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “non-5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all non-5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and (ii) may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.
1. Manufacture of the PMN substance (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. Manufacture of the PMN substance at an annual manufacturing and import volume not to exceed the confidential production volume stated in the consent order.
3. Submission of certain testing prior to exceeding the two confidential production volume limits specified in the consent order.
4. Disposal of manufacturing wastes by incineration.
5. Releases to surface waters not to exceed 50 ppb for the specific processing and use streams identified in the consent order.
6. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a Material Safety Data Sheet (“MSDS”), within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Monitoring of the effluent waste water stream during manufacture in addition to the requirements of any existing NPDES permit. Data will be collected on the confidential analytes specified in the consent order and submitted to the Agency quarterly.
2. Manufacture of the PMN substances (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
3. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Manufacture of the PMN substances (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. No use of the PMN substance in consumer products with spray applications.
3. Submission of certain fate testing prior to exceeding the confidential production volume limit specified in the consent order.
4. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Manufacture of the PMN substance (a) according to the chemical composition section of the consent order, including analyzing and reporting to EPA the average number molecular weight at each manufacturing facility at the time of initial commencement and annually thereafter, and (b) where the mean number of moles of each PPO unit must be greater than or equal to 5.
2. Manufacture of the PMN substance at an annual manufacturing and import volume not to exceed the confidential production volume limit stated in the consent order.
3. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Manufacture of the PMN substance (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA and (b) within the maximum established limits of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. Manufacture of the PMN substance at an annual manufacturing and import volume not to exceed the confidential production volume stated in the consent order.
3. No use of the PMN substance in consumer products with spray applications.
4. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Monitoring of the effluent waste water stream during manufacture in addition to the requirements of any existing NPDES permit. Data will be collected on the confidential analytes specified in the consent order and submitted to the Agency quarterly.
2. Manufacture of the PMN substances (a) according to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA, and (b) within the maximum established levels of certain fluorinated impurities of the PMN substances as stated in the consent order.
2. Risk notification. If as a result of the test data required, the Company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the Company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Domestic manufacture.
2. Use of the substance other than as described in the PMN.
3. Use in a consumer product.
4. Processing or use of the substance in a solid form.
5. Manufacturing, processing, or use of the PMN substance without an appropriate material safety data sheet that warns to not release to water.
6. Any use of the substance resulting in surface water release.
Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for 14 of the 25 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) consent orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters. The SNUR provisions for these chemical substances are consistent with the provisions of the TSCA section 5(e) consent orders. These SNURs are promulgated pursuant to § 721.160 (see Unit II.).
In the other 11 cases, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at § 721.170 were met, as discussed in Unit IV.
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture, import, or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing a listed chemical substance for the described significant new use.
• EPA will be able to regulate prospective manufacturers, importers, or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.
• EPA will ensure that all manufacturers, importers, and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at
EPA is issuing these SNURs as a direct final rule, as described in § 721.160(c)(3) and § 721.170(d)(4). In accordance with § 721.160(c)(3)(ii) and § 721.170(d)(4)(i)(B), the effective date of this rule is October 15, 2012 without further notice, unless EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments before September 14, 2012.
If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before September 14, 2012, EPA will withdraw the relevant sections of this direct final rule before its effective date. EPA will then issue a proposed SNUR for the chemical substance(s) on which adverse or critical comments were received, providing a 30-day period for public comment.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse or critical comments, or notice of intent to submit adverse or critical comments, must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
Significant new use designations for a chemical substance are legally established as of the date of publication of this direct final rule August 15, 2012.
To establish a significant “new” use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. TSCA section 5(e) consent orders have been issued for 14 chemical substances and the PMN
As discussed in the April 24, 1990 SNUR, EPA has decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of this direct final rule rather than as of the effective date of the rule. If uses begun after publication were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements because a person could defeat the SNUR by initiating the significant new use before the rule became effective, and then argue that the use was ongoing before the effective date of the rule. Thus, persons who begin commercial manufacture, import, or processing of the chemical substances regulated through this SNUR will have to cease any such activity before the effective date of this rule. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including any extensions expires.
EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person meets the conditions of advance compliance under § 721.45(h), the person is considered exempt from the requirements of the SNUR.
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. lists those tests. Unit IV. also lists recommended testing for non-5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
In the TSCA section 5(e) consent orders for several of the chemical substances regulated under this rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) consent orders, each PMN submitter is required to submit each study before reaching the specified production limit. Listings of the tests specified in the TSCA section 5(e) consent orders are included in Unit IV. The SNURs contain the same production volume limits as the TSCA section 5(e) consent orders. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture, import, or processing.
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1).
Under these procedures a manufacturer, importer, or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer, importer, or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2012-0450.
This rule establishes SNURs for several new chemical substances that were the subject of PMNs and, in some cases, TSCA section 5(e) consent orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).
According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUN submitted by any small entity would not cost significantly more than $8300. A copy of that certification is available in the docket for this rule.
This rule is within the scope of the February 18, 2012, certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8300.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this rule. As such, EPA has determined that this rule does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).
This rule does not have Tribal implications because it is not expected to have substantial direct effects on
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, 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), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the company becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(iii)
(iv)
(b)
(1)
(2)
(3)
(a) Chemical substances and significant new uses subject to reporting. (1) The chemical substance identified generically as alkyl methacrylates, polymer with substituted carbomonocycle, hydroxymethyl acrylamide and fluorinatedalkyl acrylate (PMN P-10-485) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a) Chemical substances and significant new uses subject to reporting. (1) The chemical substance identified generically as diethylene glycol, polymer with diisocyanatoalkane, polyethylene glycol monomethyl ether- and fluorinatedalkanol-blocked (PMN P-11-48) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as perfluoroalkylethyl methacrylate copolymer with hydroxymethyl acrylamide, vinyl chloride and long chain fatty alkyl acrylate (PMN P-11-247) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for this substance, the employer becomes aware that this substance may present a risk of injury to human health, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a Material Safety Data Sheet (MSDS) as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If this substance is not being manufactured, imported, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive this substance from the employer are provided a MSDS as described in § 721.72(c) containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as brominated aliphatic alcohol (PMN P-12-260) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as phosphonium, tributyltetradecyl-, chloride (1:1) (PMN P-12-275; CAS No. 81741-28-8) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to promulgate a Reservation-specific Federal Implementation Plan in order to regulate emissions from oil and natural gas production facilities located on the Fort Berthold Indian Reservation located in North Dakota. The Federal Implementation Plan includes basic air quality regulations for the protection of communities in and adjacent to the Fort Berthold Indian Reservation. The Federal Implementation Plan requires owners and operators of oil and natural gas production facilities to reduce emissions of volatile organic compounds emanating from well completions, recompletions, and production and storage operations. This Federal Implementation Plan will be implemented by EPA, or a delegated Tribal Authority, until replaced by a Tribal Implementation Plan. EPA is proposing a Reservation-specific Federal Implementation Plan concurrently with this final rule.
This rule is effective in the CFR on August 15, 2012. This rule is effective with actual notice by EPA to the owners and operators for purposes of enforcement beginning at 5 p.m. (eastern daylight time) on August 3, 2012.
Deirdre Rothery, U. S. Environmental Protection Agency, Region 8, Air Program, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6431,
Throughout this document, “we,” “us” and “our” refer to the EPA.
For the purpose of this document, we are giving meaning to certain words or initials as follows:
In today's action, we are promulgating a Reservation-specific Federal Implementation Plan (FIP or rule) to establish enforceable control requirements for reducing volatile organic compound (VOC) emissions from oil and natural gas production activities on the Fort Berthold Indian Reservation (FBIR) in North Dakota. Specifically, we are issuing this rule to require owners and operators of oil and natural gas production facilities producing from the Bakken Pool to reduce emissions of VOCs emanating from well completions, recompletions, and production and storage operations. As explained in more detail in Section III, promulgating these Federal regulations addresses an important initial step to fill a regulatory gap with regard to controlling VOC emissions from oil and natural gas operations on the FBIR. There is no other Federal rule, including the recently finalized New Source Performance Standard (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Oil and Gas Sector (NSPS OOOO and NESHAP HH), that fills this gap for the particular geologic formations that exist on the FBIR. Therefore, this rule is necessary to level the playing field, and provide the public on the FBIR the same air quality protections as the public outside the FBIR. In addition, owners and operators of oil and natural gas operations on the FBIR are provided the same benefits that owners and operators of oil and natural gas operations off the Reservation are provided by the North Dakota Department of Health (NDDoH) regulations and North Dakota Industrial Commission (NDIC) regulations in terms of effectively limiting potential to emit (PTE).
EPA is issuing this action as a final rule. As explained in Section III., the final rule requires owners and operators of oil and natural gas production facilities on the FBIR to reduce emissions of VOC for specific types of equipment. This final rule will take effect promptly. It will be effective in the CFR on August 15, 2012. It will also be effective, with actual notice by EPA to the owners and operators, for purposes of enforcement beginning at 5 p.m. (eastern daylight time) on August 3, 2012. This final rule is also time-limited. It will be effective only until the date that EPA promulgates a final rule based on its proposal for a Reservation-specific FIP to regulate emissions from oil and natural gas production facilities located on the FBIR and that final rule takes effect. EPA is proposing a Reservation-specific FIP concurrently with this final rule. As explained in detail below, EPA finds that compelling circumstances warrant the promulgation of this final rule.
A final rule is effective with actual notice upon signature by the EPA without an opportunity for public comment. Under APA section 553, a Federal agency generally must provide for public notice and comment prior to finalizing an agency rule. However, this obligation is excused, under APA section 553(b)(3)(B), “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” While the good cause exception is to be narrowly construed,
A brief explanation of the circumstances is helpful to understand why Notice and comment here would be both contrary to the public interest and impracticable and therefore why there is good cause to implement this final rule while the agency conducts a notice and comment rulemaking for the permanent rule. The need to address VOC emissions from coproduced natural gas from oil and natural gas production sources on the FBIR was first brought to EPA's attention approximately 12 months ago, following publication of the Review of New Sources and Modifications in Indian Country or Federal Tribal NSR Rule, promulgated on July 1, 2011, at 40 CFR 49.151 (
In August 2011, EPA and the operators entered into consent agreement final orders (CAFOs), which established control requirements that restricted emissions from the oil and natural gas production facilities subject to those agreements to below major source thresholds and allowed the
In late August 2011, the EPA Region 8 initiated a process to develop, propose and issue permits to the hundreds of sources on the FBIR (both existing and proposed new wells) and to develop a FIP. At that time, EPA lacked detailed information to develop permits (
In late August 2011, the EPA Region 8 air permit and enforcement programs hosted a Fort Berthold Oil Production Minor NSR Permitting Process Meeting with the oil producers. Representatives from the MHA Nation were invited and attended in person and by phone. Discussions included the anticipated permitting timeline for permit applications submitted by the oil producers. Between August 23 and September 1, 2011, a draft model synthetic minor permit was sent by EPA to the meeting attendees and the Tribes in preparation for the next meeting on September 1, 2011. Then, on September 1, 2011, Region 8 hosted a permitting workshop. Representatives from the various oil producers and the MHA Nation were invited and attended. Representatives of the North Dakota Dept. of Health also participated by phone. The minor NSR permitting process was discussed, as well as questions that the companies submitted ahead of time. The group began discussions on the draft model permit and set up a workshop specifically to delve into the specific permit conditions for the following week. On September 7 and 8, 2011, EPA hosted a two-day follow-up permitting workshop. All previous meeting attendees were invited, including the MHA Nation. Participants included the oil producers and their consultants. North Dakota Department of Health representatives were also on the phone. At this meeting the group went through the draft model permit and discussed the proposed conditions and appropriate edits. Also discussed was what would constitute a complete application (administrative and technical) and the various methods of PTE calculation proposed by the companies in attendance. The EPA Region 8 hosted an additional meeting on November 30, 2011 to discuss the revised example permit, and representatives from the various oil producers and the MHA Nation were invited and attended.
We initially planned to issue all of the necessary permits before August 26, 2012, the earliest expiration date of the CAFOs. However, in May 2012, the true extent of the significant workload associated with developing and finalizing permits for more than 600 existing and new oil and natural gas production facilities became apparent. It became clear that, due to the extraordinary number of permits that needed to be issued, the need to tailor each of those permits to comport with the information in the permit application and the short timeframe remaining to complete those tasks, it would not be possible to issue all, or even a significant portion of, the final permits by August 26, 2012. Moreover, given the rapid pace of oil and gas development on the FBIR, there are likely numerous additional sources that will each need a permit in addition to sources EPA is aware of at this time. We therefore determined that the only way to ameliorate the situation in a timely manner was through this rulemaking action. We contemplated developing the FIP in addition to issuing the individual permits, but determined that promulgating the FIP should be our top priority once we realized that we could not issue all of the necessary permits in a timely manner.
Key safety provisions of the final rule require either collection and high efficiency flaring (combustion) of coproduced natural gas or that the well(s) be connected to a natural gas gathering line so that coproduced natural gas can be sold or used for another beneficial purpose. Given the accelerated development in this area and the nature of the oil and gas extracted, these requirements are necessary for both safety and protection of public health from exposure to air pollution and will avoid fire hazards and protect the public from hazardous conditions. Specifically, the requirements further a number of important goals in that regard. First, as discussed in Section III.C., VOC emissions from the natural gas that is co-produced with oil extracted from the formations are generally greater than such emissions from activities in other oil bearing formations, due to the characteristics of the produced oil. The FIP requirements for owners and operators of the oil and natural gas production facilities to reduce emissions of VOCs emanating from well completions, recompletions and production and storage operations will significantly reduce VOC emissions thereby ensuring that public health and the environment are protected. Second, the rule will result in immediate reductions in fire risks and improvements in air quality as a result of control of emissions from both new and existing oil and gas operations. Accordingly, as a result of the unique characteristics of the formations at issue, immediate application of the FIP requirements to both new and existing oil and natural gas operations is necessary to ensure that public health and the environment, continue to be protected once consent agreement final orders (CAFOs) with EPA expire.
The requirements of the FIP also serve to minimize regulatory burden in a number of ways. This rule ensures that ongoing oil and gas operations (including modifications), and new operations, can occur uninterrupted in a manner consistent with the Clean Air Act (CAA), thus protecting the economic interest of both the companies and Tribes involved and the local communities. The oil and natural gas production companies operating on the FBIR entered into CAFOs with EPA which allowed them to continue existing operations and begin new ones without first complying with major source prevention of significant deterioration (PSD) new source review (NSR) requirements if applicable, which can be a very lengthy and resource-intensive process. These CAFOs are further discussed in Section III.G. The CAFOs, which contain emissions control and other requirements that are consistent with those in the rule adopted today, have been in place since August 2011 and will expire beginning on August 26, 2012,
As a result, without this final rule there will be a mixture of circumstances that will increase potential threats to human health and the environment while simultaneously impeding oil and gas development. This is because of the
In summary, this rule serves the necessary function of ensuring that a regulation is in place to control emissions of VOCs by these sources. These provisions contain legally and practicably enforceable requirements to use control measures to reduce VOC emissions such that those reductions can then be considered in calculating a source's PTE. In most cases, consideration of these emission reductions in calculating a source's PTE VOCs will result in a PTE that is below the regulatory threshold so that the source will not face a long delay in its ability to continue to operate, construct or modify. The public interest would certainly be hindered if EPA did not act now to ensure that these important public health protections are in place and that economic progress is not impeded by a lack of regulations controlling VOC emissions.
Finally, this rule is important in that while not identical to, the rule is consistent with regulations approved into North Dakota's SIP
The good cause exception also applies here because of the impracticability of notice and comment. EPA initially did not recognize the sheer magnitude of the volume of permit applications that it would need to process in a short time period to avoid economic disruption on the Reservation. Now that it fully comprehends the enormity of the task, EPA has determined that it would be unable to timely process more than 600 permit applications, specified to be submitted as part of the CAFOs between EPA and the oil and natural gas owners and operators by August 2012. Because of our inability to process these permits, and because of lateness at which we became fully aware of the full scope of the burden, EPA thus has had insufficient time to seek public comment before acting on the rule promulgated today.
While we have determined that notice and comment are both contrary to the public interest and impracticable, we note that the public has had several opportunities to learn about, and even comment on, the substantive requirements contained in this interim rule. The substance of many provisions in the final rule are similar to the requirements contained in the six permits for individual oil and gas production facilities on the FBIR that EPA proposed earlier this year. We received comments from the public and the sources on those proposed permits and we have taken those comments into consideration in developing the FIP requirements. The substantive requirements of the FIP are also similar to the conditions in the CAFOs under which the oil and natural gas production sources have been operating for nearly a year, and the public had notice of the CAFOs, which were posted on EPA's Internet site for public review.
For the reasons discussed above, EPA finds both that there is good cause to forego notice and comment for this interim rule, and that there is good cause for this rule to take immediate effect and to take effect as described above, for those sources that receive actual notice for purposes of enforcement. Since this is not a major rule under the Congressional Review Act (CRA), the 60-day delay in effective date required for major rules under the CRA does not apply.
We are also simultaneously publishing a parallel proposed rulemaking which seeks comment on information found within this final rule. Note that Docket Number EPA-R08-OAR-2012-0479 is being used for both the final rule and the parallel proposed rule.
In today's action, we are promulgating a Reservation-specific FIP to establish enforceable control requirements for reducing VOC emissions from oil and natural gas production activities on the FBIR in North Dakota. Specifically, we are issuing this rule to require owners and operators of oil and natural gas production facilities producing from the Bakken Pool
As noted above, promulgating these Federal regulations addresses an important initial step to fill a regulatory gap with regard to controlling VOC emissions from oil and natural gas operations on the FBIR. There is no other Federal rule, including the recently finalized NSPS and NESHAPs for the Oil and Gas Sector (NSPS OOOO and NESHAP HH),
What we are providing in the way of regulations in the FIP, and the impact that it will have on permitting is generally consistent with the approach that we have approved of in the areas surrounding the FBIR. Owners and operators of oil and natural gas operations in the NDDoH jurisdiction producing from the Bakken Pool are potentially subject to the North Dakota preconstruction permitting requirements found in the North Dakota Air Pollution Control Rules (“North Dakota Rules”) at Chapter 33-15-14 (Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate) and Chapter 33-15-15 (Prevention of Significant Deterioration of Air Quality) if uncontrolled emissions are greater than the permitting thresholds. However, all of the owners and operators are also subject to the North Dakota Rules for the operation of oil and natural gas production operations in the State of North Dakota. The regulations found at Chapter 33-15-07 (Control of Organic Compound Emissions) provide legally and practicably enforceable control requirements and VOC emission reductions when applicable. Additionally, all of the owners and operators are subject to the NDIC regulations for well completions found at Chapter 38-08 Control of Oil and Gas Resources. In many cases, owners and operators complying with these additional North Dakota Rules and NDIC regulations, and following the NDDoH guidance (Bakken Pool Guidance)
Similar to the owners and operators of oil and natural gas operations producing from the Bakken Pool in NDDoH jurisdiction, the owners and operators of oil and natural gas operations producing from the Bakken Pool on the FBIR are potentially subject to the Federal preconstruction permitting requirements found in the Federal rules at 40 CFR 52.21 (Prevention of Significant Deterioration of Air Quality), and 40 CFR 49.151 through 49.161 (Federal Tribal NSR Rule). However, on the FBIR only NSPS OOOO and NESHAP HH provide legally and practicably enforceable VOC control requirements outside of the Federal pre-construction permitting requirements. Further, NSPS OOOO only applies to new and modified facilities and only to the oil storage tanks being utilized in the Bakken Pool operations. Thus, most owners and operators of oil and natural gas activities producing in the Bakken Pool must obtain preconstruction permits before production can begin, or if they are not obligated to obtain a permit face no control obligations whatsoever.
This rule will fill this regulatory gap. Consistent with the regulatory structure that exists off the FBIR, and NSPS OOOO, this rule requires VOC control requirements and emissions reductions, monitoring, recordkeeping and reporting with regard to well completions, recompletions, and production and storage operations. This rule will also, to the extent practicable, minimize the construction permitting program implementation burdens upon us and the regulated community while establishing requirements that are unambiguous and legally and practicably enforceable.
However, this rule will not eliminate any potential permitting requirements for oil and natural gas production facilities, but in many cases it will impose legally and practicably enforceable requirements that will lower PTE to a level that will allow the operators to construct without being required to obtain a PSD or Federal preconstruction permit under the Federal Tribal NSR Rule for Indian country. Specifically, where compliance with the requirements of this rule results in PTE VOCs from all pollution-emitting sources at the facility that are less than the thresholds in the PSD and Federal Tribal NSR rules, the source would not trigger permitting requirements and therefore may avoid PSD and minor source preconstruction permitting altogether. To comply with the CAA and avoid PSD or minor source preconstruction permitting altogether, a facility must calculate its PTE VOCs from all pollution-emitting sources at the facility and verify that it is less than the threshold in the PSD and Federal Tribal NSR rules. While we believe that VOC is the pollutant most likely to be emitted in quantities sufficient to require permitting, the facility may not avoid the PSD and Federal Tribal NSR permitting requirements if its emissions of any other regulated NSR pollutant are high enough to trigger PSD requirements.
Included in the docket for this rule are copies of the NDDoH rules and guidance and the NDIC regulations that we considered in this process, as well as a technical support document explaining the requirements as compared to these requirements.
We developed this rule in consultation with the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation. As part of this consultation we evaluated the oil and natural gas activities and sources of VOC emissions that could impact air resources on the Reservation and the differences in the VOC emission reduction requirements for those facilities operating on the FBIR compared to those facilities operating in NDDoH jurisdiction. We also held a meeting with the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nations on June 13, 2012.
To develop this rule, we first determined that oil and natural gas production on the FBIR from the Bakken Pool was becoming increasingly prevalent and that information regarding the nature of the fluids produced from the Bakken Pool indicated significant emissions of VOC. We accomplished this step by reviewing information provided by the NDDoH and a host of oil and natural gas operators already producing in the Bakken Pool.
In order to develop appropriate requirements for the control of emissions from the production operations in the Bakken Pool, we studied the nature of the hydrocarbon liquids being produced and existing operations currently in practice. An oil well produces predominantly crude oil,
The oil/natural gas/water emulsion being produced from each well is transported up the wellbore using an electric lifting unit, when required. The emulsion from the wells producing to this facility is transported through 2-phase separators (separators) which are an inherent component of the pipeline. The number of separators on any one production pipeline can vary from one to several. These separators reduce the pressure of the oil/natural gas/water emulsion to initiate the separation of the natural gases from the liquids. The natural gases and liquids are then sent to a 3-phase separator (heater-treater). The heater-treater reduces the pressure closer to ambient pressure and heats the leftover emulsion using a flame-arrested line heater (the heater-treater burner). The combination of higher temperatures and lower pressures allows for additional separation of the natural gas/oil/water phases from each other because of differences in densities.
Following the heater-treater, the produced oil and water are routed to storage tanks. The recovered natural gas is transferred from the heater-treater to the sales natural gas pipeline or to an emissions control unit when a natural gas sales pipeline is not available or the pipeline has a limited capacity. The oil is temporarily stored in these on-site storage tanks prior to being transferred either to tanker trucks or to a lease automatic custody transfer (LACT) unit for conveyance to a refining process plant. Separated water is temporarily stored in the on-site storage tanks prior to being loaded into tanker trucks for transport and disposal.
In addition to the natural gas recovered from the extracted wellhead fluids, low pressure natural gas is also collected from off-gassing that occurs from the storage of the produced oil and water in the on-site tanks at the facilities. This low pressure natural gas is collected via a vent line from the tanks and is either routed to an enclosed combustor, utility flare or pit flare for combustion, or is routed to a vapor recovery unit (VRU) to be injected into a natural gas sales pipeline for conveyance to a natural gas plant. In the event that pipeline injection of recoverable natural gas is temporarily infeasible and no enclosed combustor or utility flare is operational onsite, the natural gas may temporarily be routed through a closed-vent system to a pit flare.
We further identified, in the information provided, that the most prevalent sources of VOC emissions associated with oil and natural gas production come from well completions, recompletions, and production and storage operations. During well completions and recompletions there is a period of flowback of oil, natural gas, and water from newly drilled wells in order to expel drilling and reservoir fluids which vents considerable VOC emissions to the atmosphere. Large amounts of VOCs are also emitted during production when the reservoir fluids are separated into oil, natural gas and water under high pressure using heat. Finally, the transfer and storage of the produced oil and water after separation can be a source of VOC emissions if vented to the atmosphere. In other words, the separated oil and water are both under high pressure and still contain some dissolved natural gas. When the separated oil and water are subjected to atmospheric pressure during transfer to storage tanks, the dissolved natural gas comes out of the liquid. Unless a natural gas sales pipeline is available and is used to receive the evolved natural gas, it becomes a significant source of VOC emissions. Due to the high levels of VOC emissions from these specific operations, we established VOC control and emission reduction requirements in this rule for completion and recompletion operations, heater-treater systems associated with production operations, and storage tanks associated with oil and water storage operations.
Because of the experience that already existed in the Bakken Pool, we consulted with the owners and operators that are currently producing from the Bakken Pool on the FBIR and in NDDoH jurisdiction with regard to the production practices already in place. The practices currently in place are primarily due to product recovery or safety concerns and demonstrate compliance with the applicable NDIC regulations for flaring of co-produced natural gas and safety that address those concerns. These consultations provided us not only with information on the production on and off the Reservation, but also provided us with information on the existing phased approach to controlling practices occurring both from well completion and recompletions, through production operations, and ending with storage and loading operations and an appropriate timeline for installation of the controls. Components of this rule are based on these practices that are already in place off the FBIR.
In addition, we evaluated the North Dakota regulations to help identify appropriate requirements for construction and operation of the regulated equipment and the requirements for controlling VOC emissions from this equipment. The North Dakota Rules at Chapter 33-15-07 provide requirements for the construction and operation of units that separate volatile organic liquids from water, and the control of VOC emissions from such units. Specifically, Chapter 33-15-07 requires that any equipment processing, treating, storing or handling volatile organic liquids must be equipped with covers (in the case of tanks), closed vent systems and control devices, such as VRUs, enclosed combustors, or flares. Chapter 33-15-07 refers to the Standards of Performance for VOC Emissions from Petroleum Refinery Wastewater Systems at 40 CFR 60.690 for the control requirements and the requirements are appropriate to crude oil production operations. Chapter 33-15-07 requires the use of submerged pipe filling during storage operations to limit the evolution of natural gas from the oil and water. We determined that the VOC emission reduction requirements during the separation of the oil, natural gas, and water in this rule were relevant and appropriate as a basis for this rule. The North Dakota Rules at Chapter 33-15-20 provide requirements for the construction and operation of oil and natural gas production equipment and the control of VOC emissions from this equipment. Chapter 33-15-20 includes
We also reviewed the NDIC regulations and the Bakken Pool Guidance. The NDIC regulations found in the Control of Oil and Gas Resources at Chapter 38-08 require natural gas from the heater-treaters to be routed to a natural gas gathering pipeline as soon as practicable. When a pipeline is not available, heater-treater natural gas is required to be routed to a control system or device. The Bakken Pool Guidance details the air pollution control requirements of oil and natural gas operations producing from the Bakken Pool and provides an approach that may be used by owners and operators of oil and natural gas operations producing from the Bakken Pool to demonstrate compliance with the applicable North Dakota Rules. VOC control requirements have been established within this guidance for tank emissions and heater-treater systems and much of the control equipment requirements and monitoring requirements in this rule were adapted from this guidance. Control of VOC emissions from other sources such as dehydration units, pneumatic controllers, pneumatic pumps, truck loading, etc. are also included in this guidance; however, we did not evaluate those components of oil and natural gas production operations. NDDoH identifies acceptable control systems that may be used by the owners and operators. These systems include: a ground pit flare for tank and heater-treater emissions with an assumed 90.0 percent VOC destruction efficiency; a VRU for tank emissions, designed and operated to reduce the mass content of VOC emission by at least 99.0 percent; and an enclosed combustor or utility flare for tank and heater-treater emissions designed and operated to reduce the mass content of VOC emission by at least 98.0 percent. Heater-treater natural gas must be routed to a natural gas gathering pipeline as soon as practicable. In addition, to VOC control requirements, the guidance provides extensive operating and monitoring requirements for the controls. According to the owners and operators that are producing from the Bakken Pool on the FBIR, they are already voluntarily following this guidance in the FBIR. Therefore, we determined that the VOC emission reduction requirements in this document were relevant and appropriate as a basis for establishing monitoring, recordkeeping and reporting requirements necessary for enforceability of this rule.
We also reviewed NSPS OOOO, which provides standards for oil and natural gas production from natural gas wells. However, with the exception of storage tanks and pneumatic controls, none of the production operations from the oil wells in the Bakken Pool that are covered by this rule are covered by NSPS OOOO. While this standard does not regulate the completion, recompletion, or production operations for the operations producing from the Bakken Pool, the common characteristics between natural gas production and the Bakken Pool production and the regulatory requirements specific to completion and recompletion, provided insight into feasible control requirements for these operations. In addition, the monitoring, recordkeeping and reporting requirements for production and storage operations were reviewed, and for necessary conditions to ensure legal and practicable enforceability were included in this rule. Some of the enhancements to the enforceability of the VOC reductions in this rule are derived from this standard.
Although we view the most relevant regulatory analogue to those operations that are in NDDoH's jurisdiction and producing from the Bakken Pool, we also reviewed other state oil and natural gas production-related regulations for areas that are similar to North Dakota in industry, meteorology, or air quality concerns to ensure the proposed requirements are legally and practicably enforceable, as well as reasonably achievable, because the technologies are being commonly used and regulated.
The other state air pollution agencies' rules and/or guidance that we reviewed included: Montana Department of Environmental Quality (MDEQ),
Regarding state regulations and guidance for VOC destruction efficiency and monitoring of enclosed combustors and utility flares, the rule requirements
When reviewing state regulations or guidance for produced oil and water storage tanks, we focused on those that might apply to the tank sizes that are typically constructed at oil and natural gas production facilities on the FBIR, primarily tanks with a storage capacity of 500 bbl each or less (approximately 21,000 gallons). The requirements for construction and emission control of produced oil and water storage tanks are fairly consistent with all state regulations and guidance reviewed, although there are varying degrees of
This rule will apply to any person who owns or operates an existing (constructed or modified on or after August 12, 2007), new, or modified oil and natural gas production facility
This rulemaking is a step in addressing concerns that have been raised about the potential impacts due to increasing oil and natural gas development on the FBIR. If in the future, we become aware of air quality or permitting burden related to oil and natural gas production for other Reservations or areas of Indian Country, using our authority described in Section V. of this notice, we may propose other FIPs that are deemed necessary or appropriate.
This rule is not a permitting program. It therefore does not impose or exempt the facilities from any Federal CAA permitting requirements, including the PSD preconstruction permitting requirements at 40 CFR § 52.21 or Federal Tribal NSR Rule permitting requirements for minor sources at 40 CFR 49.151. The purpose of this rule is to provide legal and practical enforceability for the use of VOC emission controls that are already being used voluntarily by the industry and for VOC emissions reductions from those controls. Provided that the facilities are in compliance with the new rule, they may take into account the enforceable VOC emission reductions from the required controls they use when calculating their PTE for determining applicability of the permitting requirements, to the extent that the effect those controls would have on VOC emissions is legally and practicably enforceable.
Regardless of this rule, some facilities' PTE VOCs or any other regulated NSR pollutant may exceed the applicability thresholds for PSD or Federal Tribal NSR Rule permitting even after applying the legally and practicably enforceable emission reductions provided in this rule. In such cases, the owners or operators of these facilities are required to apply for and obtain the appropriate permits.
This rule does not exempt facilities located on the FBIR from the registration requirements of the Federal Tribal NSR Rule, promulgated on July 1, 2011. Nor does this rule impose any additional registration requirements. Again, the purpose of this rule is to provide legal and practical enforceability for the use of VOC emission controls that are already being used as an industry standard and for VOC emissions reductions from those controls. Provided that the facilities are in compliance with the provisions of this rule, facilities may include the enforceable VOC emission reductions resulting from the controls required in this rule when calculating their PTE, to the extent that the effect those controls would have on VOC emissions is legally and practicably enforceable.
If the PTE VOCs or any other regulated NSR pollutant is less than the major source thresholds in 40 CFR 52.21, but equal to or greater than the thresholds in the Federal Tribal NSR Rule, then registration is required of these facilities (40 CFR 49.160). Those facilities that must obtain a PSD permit pursuant to 40 CFR 52.21 or wish to obtain a preconstruction permit pursuant to 40 CFR 49.151 of the Federal Tribal NSR Rule, in addition to meeting the requirements of this rule, are exempt from this registration requirement.
This rule applies to each owner or operator constructing or operating an oil and natural gas production facility that is located on the FBIR and producing from the Bakken Pool with one or more oil and natural gas wells, any one of which a well completion or recompletion operation is/was initiated on or after August 12, 2007.
For the purposes of this rule, a well completion means the process that allows for the flowback of oil and natural gas from newly drilled wells to expel drilling and reservoir fluids and tests the reservoir flow characteristics, which may vent produced hydrocarbons to the atmosphere via an open pit or tank. A well completion operation means any oil and natural gas well completion with hydraulic fracturing occurring at an oil and natural gas production facility. The completion date is considered the date that construction at an oil and natural gas production facility has commenced. A well recompletion operation means any oil and natural gas well completion with hydraulic refracturing occurring at an oil and natural gas production facility. The recompletion date is considered the date that a modification has occurred at an oil and natural gas production facility. The reason we selected the initiation of completions operations as the date for defining a new facility is that owners and operators use drill rigs prior to initial completion operations and this equipment is not considered a stationary source. In addition, it is not certain during the drilling operations whether a well will be a producing well. Hence it is not known whether an oil and natural gas production facility will be constructed to support that well. The outcome of a completion operation provides the well owners and operators information necessary to determine whether an oil and gas production
In determining the appropriate effective date and the well completion dates for this rule, we evaluated the purpose of the rule, the gaps in regulations, NSPS OOOO and the requirements and stipulations of CAFOs finalized between us and select operators on the FBIR in late August 2011 and amended, in some cases, between then and July 2012. The August 12, 2007, date is the earliest well completion date identified in the CAFOs. These orders established control requirements during the life of the orders for facilities operating on the FBIR by these companies who voluntarily entered into the agreement with us. One goal of this FIP for existing oil and natural gas production facilities is to provide a CAA compliance mechanism for those companies with CAFOs, prior to their expiration, which will occur between August 26, 2012 and August 31, 2012. Copies of all of the CAFOs can be found in the docket for the rule.
All counties in North Dakota that coincide with the FBIR are designated as unclassifiable/attainment for all criteria pollutants under the CAA.
Current air quality conditions in the region of the FBIR and in western North Dakota are good, with measured ambient ozone
We evaluated the impacts of changes in VOC and nitrogen oxides (NO
Expected potential emissions of sulfur dioxide (SO
This rule establishes legally and practicably enforceable VOC emission reductions that reflect reductions that facilities are already routinely achieving through the installation and operation of control equipment for health, safety and market purposes. In addition, this rule does not exempt these facilities from other potentially applicable regulatory or permitting requirements. Therefore, we believe that air quality in this area will not be adversely impacted by this action.
Supporting air quality information is discussed in the Technical Support Document for this rule, found in the rule docket.
Produced natural gas and natural gas emissions resulting from oil and natural gas production from the Bakken Pool underlying the FBIR have a high VOC content. Typically, the natural gases associated with the produced oil would be captured as product and injected directly into a natural gas sales pipeline. However, this is a relatively new field and while the natural gas sales pipelines are being developed, they are minimally available at this time. Currently, most produced natural gas and natural gas emissions from oil and natural gas production operations on the FBIR are routed to a combustion device such as a pit flare, utility flare, or enclosed combustor.
Uncontrolled emissions of VOC from operations at an oil and natural gas production facility consisting of a single well and associated production and storage operations were estimated to average approximately 2,165 tons per year (tpy). Of this total, approximately 1,610 tpy of VOC results from produced natural gas emissions from the heater-treater and 555 tpy of VOC is emitted from the produced oil and water storage tanks. This rule requires that emissions from the heater-treater and the storage tanks be routed to a combustion device. We estimate that, on average, the control requirements in this rule will reduce VOC emissions from an oil and natural gas production facility by approximately 2,090 tpy per well.
The costs of the control equipment required by this rule depend, in part, on the number of wells associated with each oil and natural gas production facility. Generally, as the number of wells located at oil and natural gas production facilities increase, the volume of oil and natural gas production and associated emissions also increase. Multiple wells at an oil and natural gas production facility can often share control equipment if there is sufficient capacity to handle the additional produced natural gas and natural gas emissions; thus, the costs of the control equipment per well potentially decreases at oil and natural gas production facilities that consist of multiple wells. The Bureau of Land Management (BLM) has estimated that future development in the area of North Dakota encompassing the FBIR is likely to feature an average of 1.5 wells per facility.
We calculated the total annual cost for a two-well facility utilizing a pit flare, utility flare, and two enclosed combustors as control equipment. For this operating scenario, we have
Based on the reasonably foreseeable development in the 2011 BLM supplemental report, we estimate that a maximum of 1,000 facilities may be developed on the FBIR by 2029. Applying a maximum total annual cost impact for a two-well facility of approximately $52,000, the maximum annual cost of compliance with this rule on the oil and natural gas industry is estimated to be approximately $50 million. However, we believe this is a conservative estimate and that actual annual costs would be much lower due to factors such as increased facility well density, standard industry practice to use VOC control equipment, and anticipated pipeline infrastructure development, which is explained further in the technical support document for this rule.
The Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nations are a federally-recognized Indian tribe organized under a Constitution and By-Laws ratified by the Tribes on May 15, 1936 and approved by the Secretary of the Interior on June 29, 1936 (with relevant amendments to the Constitution and By-Laws approved by the Department of the Interior on March 11, 1985).
Pursuant to CAA section 301(d), 42 U.S.C. 7601(d), we are authorized to treat eligible Indian tribes in the same manner as states (TAS) for purposes of implementing CAA provisions over their entire Reservation and over any other areas within their jurisdiction.
Section 301(d) of the CAA, 42 U.S.C. 7601(d), directs us to promulgate regulations specifying the provisions of the Act for which it is appropriate to treat Indian tribes in the same manner as states. Pursuant to this statutory directive, EPA promulgated regulations entitled, “Indian Tribes: Air Quality Planning and Management” (TAR) 63 FR 7254 (February 12, 1998). Our regulations delineate the CAA provisions for which it is appropriate to treat tribes in the same manner as a state.
The TAR preamble clarified that by including CAA section 110(c)(1) on the § 49.4 list, “EPA is not relieved of its general obligation under the CAA to ensure the protection of air quality throughout the nation, including throughout Indian country. In the absence of an express statutory requirement, EPA may act to protect air quality pursuant to its “gap-filling” authority under the Act as a whole.
The preamble to the TAR set forth our view articulated in the proposed rule that, based on the “general purpose and scope of the CAA, the requirements of which apply nationally, and on the specific language of sections 301(a) and 301(d)(4), Congress intended to give to the Agency broad authority to protect tribal air resources.”
The NDDoH, the CAA permitting authority for areas outside of Indian country, including outside of the FBIR, has promulgated rules to control emissions from oil and natural gas production facilities. Since there is not currently an approved FIP specifically covering the reduction of VOC emissions related to natural gas emissions from oil and natural gas production facilities on the FBIR, a regulatory gap exists with regard to such facilities operating within the exterior boundaries of the Reservation. This FIP will establish legally and practicably enforceable requirements to control and reduce VOC emissions. Therefore, in this rule, we determined that it is necessary and appropriate to exercise our discretionary authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to promulgate a FIP to remedy an existing regulatory gap under the Act with respect to the FBIR.
This rule applies to oil and natural gas facilities producing from the Bakken Pool that are constructed and operating on the FBIR in North Dakota on or after August 12, 2007. Specifically, this rule applies to facilities on the FBIR within the Crude Petroleum and Natural Gas Extraction Industry, North American
Compliance with the rule is required no later than November 13, 2012 or upon initiation of completion or recompletion operations, whichever is later. Upon signature by the Administrator, we will post this rule on our Internet site (
The provisions in § 49.141 establish the steps by which the Three Affiliated Tribes may request delegation to assist us with the administration of this rule and the process by which the Regional Administrator of EPA Region 8 may delegate to the Tribes the authority to assist with such administration of this rule. As described in the regulatory provisions, any such delegation will be accomplished through a delegation of authority agreement between the Regional Administrator and the Tribes. This section provides for administrative delegation of this federal rule and does not affect the eligibility criteria under CAA section 301(d) and 40 CFR 49.6 for TAS should the Tribes decide to seek such treatment for the purpose of administering their own EPA-approved program under Tribal law. Administrative delegation is a separate process from TAS under the TAR. Under the TAR, Indian tribes seek EPA-approval of their eligibility to run CAA programs under their own laws. The Three Affiliated Tribes would not need to seek TAS under the TAR for purposes of requesting to assist us with administration of this rule through a delegation of authority agreement. In the event such an agreement is reached, the rule would continue to operate under federal authority throughout the FBIR, and the Tribes would assist us with administration of the rule to the extent specified in the agreement.
The provisions in § 49.142 General Provisions provide: (1) Definitions that apply to this rule; (2) assurance that we will maintain its authority to require testing, monitoring, recordkeeping, and reporting in addition to that already required by an applicable requirement, in a permit to construct or permit to operate in order to ensure compliance; and (3) assurance that nothing in the rule will preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a facility would have been in compliance with applicable requirements if the appropriate performance or compliance test had been performed.
The provisions in § 49.143 Construction and Operational Control Measures provide requirements to reduce VOC emissions during well completion and recompletion operations. The owner or operator must route all casinghead natural gas emissions associated with completion and recompletion operations to a utility flare or a pit flare capable of reducing the mass content of VOCs in the natural gas vented to it by at least 90.0 percent. We note that the well completion and recompletion control requirements to use pit flares or utility flares that have the capability to reduce the mass content of VOC in the natural gas emissions routed to them by at least 90.0 percent by weight are the minimum level of control that would be allowed under this rule. Owners and operators may also choose to perform reduced emission completions and recompletions,
The rule requires the owner or operator to route all standing, working, breathing and flashing losses from the produced oil storage tanks and any produced water storage tanks interconnected with the produced oil storage tanks through a closed vent system to either an operating system designed to recover and inject the natural gas emissions into a natural gas gathering pipeline system for sale or other beneficial use, or to an enclosed combustor or utility flare capable of reducing the mass content of VOC in the natural gas emissions vented to the device by at least 98.0 percent. We note that while NSPS OOOO requires 95% VOC reduction of emissions from storage tanks, owners and operators of oil and natural gas production facilities on the FBIR have indicated that a 98% VOC destruction efficiency in the Bakken Pool Guidance is achievable and committed in their synthetic minor NSR applications to reduce the mass content of VOC emissions routed to the enclosed combustors or utility flares used for storage tank control by at least 98.0% by weight. Since oil and natural gas production on the FBIR has higher VOC content than typical natural gas production and the overall BTU value is generally higher, this should result in more efficient VOC destruction. Therefore, we believe that a requirement of 98.0% reduction of VOC emissions during continued production operations is appropriate. However, to prevent duplicative federal requirements for
The requirements to use pit flares, enclosed combustors, and utility flares are based on requirements in the North Dakota Rules at Chapters 33-15-07 and 33-15-20, and the Bakken Pool Guidance. These control devices must be operated under specific conditions as specified in § 49.144 Control Equipment Requirements and § 49.145 Monitoring Requirements. The VOC destruction efficiencies of 90.0 and 98.0 percent are the same efficiencies required in the Bakken Pool Guidance.
The provisions in § 49.144 Control Equipment Requirements require the use of covers on all produced oil and water storage tanks and the use of closed-vent systems with all VOC capture and control equipment. These requirements are derived from the North Dakota Rules at Chapter 33-15-07. Section 49.144 also specifies construction and operational requirements for the covers and closed-vent systems. The construction and operational requirements of the covers and closed-vent systems are based on the NSPS OOOO requirements and are intended to provide legal and practical enforceability. In addition, § 49.144 requires specific construction and operational requirements of pit flares, enclosed combustors, and utility flares. These requirements are derived from the Bakken Pool Guidance and have been enhanced where necessary to provide legal and practical enforceability.
The provisions in § 49.144 require that each owner and operator equip the openings on each produced oil storage tank and each produced water storage tank that is interconnected with produced oil storage tanks with a cover that ensures that natural gas emissions are efficiently routed through a closed-vent system to a vapor recovery system, an enclosed combustor, or a utility flare. Each cover and all openings on the cover (
Each owner and operator is required to use closed-vent systems to collect and route natural gas emissions to the respective VOC control devices. All vent lines, connections, fittings, valves, relief valves, or any other appurtenance employed to contain and collect gases, and transport them to the VOC control equipment must be maintained and operated properly during any time the control equipment is operating and must be designed to operate with no detectable natural gas emissions. If a closed-vent system contains one or more bypass devices that could be used to divert all or a portion of the natural gas, from entering the VOC control devices, the owner or operator must meet one of the following options for each bypass device: (1) At the inlet to the bypass device properly install, calibrate, maintain, and operate a natural gas flow indicator capable of taking periodic readings and sounding an alarm when the bypass device is open such that the natural gas is being, or could be, diverted away from the control device and into the atmosphere; or (2) secure the bypass device valve in the non-diverting position using a car-seal or a lock-and-key type configuration. These requirements are consistent with the requirements for storage tanks under NSPS OOOO and will ensure that the requirements apply to any storage tanks that are not subject to NSPS OOOO.
Each owner or operator is required to follow the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions from each enclosed combustor or utility flare. Each enclosed combustor must have the capacity to reduce the mass content of the VOC in the natural gas routed to it by at least 98.0 percent for the minimum and maximum natural gas volumetric flow rate and British Thermal Unit (BTU) content routed to it. We note that the NSPS OOOO requires owners and operators to demonstrate that enclosed combustors and utility flares achieve the required VOC reduction by conducting performance tests. Those units that have been tested by the manufacturer in accordance with specific requirements in the rule, or that are designed and operated in accordance with applicable requirements in 40 CFR 60.18(b), satisfy the requirements of performance testing by the owner or operator. For the purposes of this rule, we require that all utility flares installed per this rule meet the requirements in 40 CFR 60.18(b), and all enclosed combustors installed per this rule must be tested according to the NSPS OOOO performance testing requirements. Until such time that compliance is required with the storage vessel requirements in the NSPS OOOO standard, however, the owner or operators can demonstrate compliance using methods specified in this rule.
We determined that certain work practice and operational requirements are also necessary for the practical enforceability of the VOC emission reduction requirement that the enclosed combustors or utility flares must achieve. Flares and combustors must be operated within specific parameters to effectively destroy VOC emissions. This was discussed in great detail in the preamble and technical support
Section 49.144 requires that each owner or operator limit the use of pit flares to: the control natural gas emissions during well completion operations; the control VOC emissions in the event the natural gas that is being recovered for sale or other beneficial purpose must be diverted to an emergency control device because injection into the pipeline is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational; or use when total uncontrolled PTE VOCs from all produced oil storage tanks and any produced water storage tanks interconnected with produced oil storage tanks at an oil and natural gas production facility have declined to less than, and are reasonably expected to stay below, 20 tons in any consecutive 12-month period. Each pit flare must be operated to reduce the mass content of VOC in the natural gas routed to it by at least 90 percent and must be operated with no visible smoke emissions.
As North Dakota has done in the Bakken Pool Guidance, § 49.144 allows owners or operators of oil and natural gas production facilities to use control devices other than an enclosed combustor or utility flare, provided they are capable of achieving at least a 98.0 percent VOC destruction efficiency and upon our written approval. This provision will allow for owner or operators to take advantage of technological advances in VOC emission control for the oil and natural gas production industry and will provide us with valuable information on any new control technologies.
Section 49.145 Monitoring Requirements requires each owner or operator conduct certain monitoring that we determined is necessary for the practical enforceability of the VOC emission reduction requirements, including but not limited to: (1) Monitoring of the hours of operation of each pit flare used to control VOC emissions in the event the natural gas that is being recovered for sale or other beneficial purpose must be diverted to an emergency control device because injection into the pipeline is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational; (2) Monitoring of the number of barrels of oil produced at the facility each time the oil is unloaded from the produced oil storage tanks; (3) Monitoring of the volume of natural gas from the heater-treater sent to each enclosed combustor, utility flare, and pit flare at all times; (4) Monitoring of the volume of standing, working, breathing, and flashing losses from the produced oil and produced water storage tanks sent to each vapor recovery system, enclosed combustor, utility flare, and pit flare at all times; (5) Directly measuring, or calculating using EPA approved models, various parameters (i.e., product throughput, enclosed combustor flame presence, temperature, etc.) related to the proper operation of emissions units and required control devices to assure compliance with the emissions reduction requirements and operational limitations; and (6) Visibility monitoring for detecting visible smoke from enclosed combustors, utility flares, and pit flares.
These requirements are derived from the Bakken Pool Guidance in conjunction with NSPS OOOO. The monitoring, recordkeeping and reporting requirements for the covers, close-vent systems, pit flares, enclosed combustors, and utility flares are based, in part, on the requirements in the Bakken Pool Guidance. Specifically, our review and determination that these requirements are appropriate, as well as the Bakken Pool Guidance provides the basis for monitoring the flares and enclosed combustors. The monitoring of the covers and closed-vent systems, in addition to the recordkeeping and reporting requirements are based on the NSPS OOOO requirements for these units and are intended to provide legal and practical enforceability.
Section 49.146 Record Keeping Requirements requires that each owner or operator of an oil and natural gas production facility keep specific records to be made available upon our request, in lieu of voluminous reporting requirements. The records that must be kept include, but are not limited to, all required measurements, monitoring, and deviations or exceedances of rule requirements and corrective actions taken, as well as any manufacturer specifications and guarantees or engineering analyses. These record keeping requirements were derived independently of the North Dakota Rules and Bakken Pool Guidance and provide legal and practical enforceability to the control and emission reduction requirements of this rule.
Section 49.147 Reporting Requirements requires that each owner or operator of an oil and natural gas production facility prepare and submit an annual report, beginning one year after this rule becomes effective covering the period for the previous calendar year. The report must include a summary of required records identifying each oil and natural gas production well completion or recompletion operation for each facility conducted during the reporting period, an identification of the first date of production for each oil and natural gas production well at each facility that commenced operation during the reporting period, and a summary of deviations or exceedances of any requirements of the FIP and the corrective measures taken. Additionally,
We decided not to require owners or operators to register their oil and natural gas production facilities, because the Federal Tribal NSR Rule at 40 CFR 49.151 already requires registration of existing minor sources and such a requirement in this rule would be redundant.
These reporting requirements were derived independently of the North Dakota Rules and Bakken Pool Guidance and provide legal and practical enforceability to the control and emission reduction requirements of this rule.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 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 today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.
This rule will not have a significant economic impact on a substantial number of small entities due to the reduced regulatory requirement, and thus the regulatory burden, to obtain Federal CAA permits that this rule provides. We continue to be interested in the potential impacts of this rule on small entities and welcome comments on issues related to such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, Section 205 of UMRA allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under Section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Under Title II of UMRA, we determined that this rule does not contain a federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any one year. In addition, this rule does not contain a significant federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
This rule will not have substantial direct effects on the States, on the
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires us to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”
Under Section 5(b) of Executive Order 13175, we may not issue a regulation that has Tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by Tribal governments, or we consult with Tribal officials early in the process of developing the proposed regulation. Under Section 5(c) of Executive Order 13175, we may not issue a regulation that has Tribal implications and that preempts Tribal law, unless the Agency consults with Tribal officials early in the process of developing the proposed regulation.
We concluded that this final rule will have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. These regulations would affect the FBIR community by filling a gap in air quality regulations and thus creating a level of air quality protection not previously provided under the CAA. The gap-filling approach used in this rule would create Federal requirements similar to those that are already in place in areas adjacent to the Reservation covered by the proposal. Finally, although Tribal governments are encouraged to partner with us on the implementation of these regulations, they are not required to do so. Since this final rule will neither impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law, the requirements of Sections 5(b) and 5(c) of the Executive Order do not apply to this rule.
Consistent with EPA policy, the EPA consulted with Tribal officials and representatives of the Three Affiliated Tribes of the Mandan, Hidatsa and Arikara Nations early in the process of developing this regulation to permit them to have meaningful and timely input into its development.
Tribal consultation with the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation was first initiated on February 17, 2012 when we mailed a letter inviting the Tribes to consult on the first group of synthetic minor permits being issued on the Reservation under the Tribal NSR Rule. Then, on March 29, 2012, EPA senior management and the Chairman of the Tribes along with other government officials met via conference call to discuss the proposed FIP to be developed for the FBIR. We formally invited the Tribes to consult about the FIP in a letter dated April 10, 2012 to Chairman Tex Hall, of the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation Council.
We again met with members of the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara Nation Council on June 13, 2012 in New Town to consult and receive input from the Tribes as we developed the FIP. In attendance from the Council were the vice Chairman and two council members. The Tribes' legal counsel was also in attendance. The purpose of the consultation was twofold: (1) Update the Tribes on EPA's efforts to develop the FIP so that the air quality on the FBIR is protected and oil and natural gas development continues; and (2) discuss the Tribes' preferences regarding involvement in the FIP process. We provided information on our plan to prepare a FIP to ensure air quality protection while preventing delays in oil and natural gas production. EPA solicited the Tribes' input on the FIP development. The Council members present at the consultation meeting indicated that they strongly desired the FIP rule to be consistent with North Dakota's requirements for oil and natural gas production facilities in order to keep a level playing field for development and continue uninterrupted development of a key economic resource for the Tribe. The Council members expressed interest in the future delegation of the FIP so that the Tribes can implement the rule in place of EPA. The Council members also expressed interest in providing the Tribes' assistance in setting up a public hearing for the rule.
As noted above, the Three Affiliated Tribes of the Mandan, Hidatsa and Arikara Nations have indicated preliminary interest in seeking administrative delegation of the Tribal NSR rule to assist us with administration of that rule. We will continue to work with the Tribes if administrative delegation is something the Tribes decide to pursue.
Information containing the consultation process is contained in the docket for this rule.
For purposes of the proposed rule, EPA specifically solicits additional comments on the proposed action from tribal officials.
EPA interprets E.O. 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the E.O. has the potential to influence the regulation. This action is not subject to E.O. 13045 because it implements specific standards established by Congress in statutes. In addition, this rule requires control and reduction of emissions of VOCs, which will have a beneficial effect on children's health by reducing air pollution.
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rulemaking does not involve technical standards. Therefore, we are not considering the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority, low income and indigenous populations because it is in compliance with the National Ambient Air Quality Standards and provides environmental protection for all affected populations including any minority, low income, and indigenous populations.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
40 CFR part 49 is amended as follows:
42 U.S.C. 7401,
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(1) Identifies the specific provisions for which delegation is requested;
(2) Includes a statement by the Mandan, Hidatsa and Arikara Nations' legal counsel (or equivalent official) that includes the following information:
(i) A statement that the Mandan, Hidatsa and Arikara Nations are an Indian Tribe recognized by the Secretary of the Interior;
(ii) A descriptive statement demonstrating that the Mandan, Hidatsa and Arikara Nations are currently carrying out substantial governmental duties and powers over a defined area and that meets the requirements of § 49.7(a)(2); and
(iii) A description of the laws of the Mandan, Hidatsa and Arikara Nations that provide adequate authority to carry out the aspects of the rule for which delegation is requested.
(3) Demonstrates that the Mandan, Hidatsa and Arikara Nations have, or will have, adequate resources to carry out the aspects of the rule for which delegation is requested.
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(2) A Delegation of Authority Agreement may be modified, amended, or revoked, in part or in whole, by the Regional Administrator after consultation with the Mandan, Hidatsa and Arikara Nations.
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(a) Each owner or operator must operate and maintain all liquid and gas collection, storage, processing and handling operations, regardless of size, so as to minimize leakage of natural gas emissions to the atmosphere.
(b) During all oil and natural gas well completion operations or recompletion operations at an oil and natural gas production facility and prior to the first date of production of each oil and natural gas well, each owner or operator must, at a minimum, route all casinghead natural gas to a utility flare or a pit flare capable of reducing the mass content of VOC in the natural gas emissions vented to it by at least 90.0 percent or greater and operated as specified in § 49.144 and § 49.145.
(c) Beginning with the first date of production from any one oil and natural gas well at an oil and natural gas production facility, each owner or operator must, at a minimum, route all natural gas emissions from production operations and storage operations to a control device capable of reducing the mass content of VOC in the natural gas emissions vented to it by at least 90.0 percent or greater and operated as specified in § 49.144 and § 49.145.
(d) Within ninety (90) days of the first date of production from any oil and natural gas well at an oil and natural gas production facility, each owner or operator must:
(1) Route the produced natural gas from the production operations through a closed-vent system to:
(i) An operating system designed to recover and inject all the produced natural gas into a natural gas gathering pipeline system for sale or other beneficial purpose; or
(ii) A utility flare or equivalent combustion device capable of reducing the mass content of VOC in the produced natural gas vented to the device by at least 98.0 percent or greater and operated as specified in § 49.144 and § 49.145.
(2) Route all standing, working, breathing, and flashing losses from the produced oil storage tanks and any produced water storage tank interconnected with the produced oil storage tanks through a closed-vent system to:
(i) An operating system designed to recover and inject the natural gas emissions into a natural gas gathering pipeline system for sale or other beneficial purpose; or
(ii) An enclosed combustor or utility flare capable of reducing the mass content of VOC in the natural gas emissions vented to the device by at least 98.0 percent or greater and operated as specified in § 49.144(c) and § 49.145.
(iii) If the uncontrolled potential to emit VOCs from the aggregate of all produced oil storage tanks and produced water storage tanks interconnected with produced oil storage tanks at an oil and natural gas production facility is less than, and reasonably expected to remain below, 20 tons in any consecutive 12-month period, then, upon written approval by the EPA the owner or operator may use a pit flare, an enclosed combustor or a utility flare that is capable of reducing the mass content of VOC in the natural gas emissions from the storage tanks vented to the device by only 90.0 percent.
(e) In the event that pipeline injection of all or part of the natural gas collected in an operating system designed to recover and inject natural gas becomes temporarily infeasible and there is no operational enclosed combustor or utility flare at the facility, the owner or operator must route the natural gas that cannot be injected through a closed-vent system to a pit flare operated as specified in § 49.144 and § 49.145.
(f) Produced oil storage tanks and any produced water storage tanks interconnected with produced oil storage tanks subject to and controlled under the requirements specified in 40 CFR part 60, subpart OOOO are considered to meet the requirements of
(a)
(1) Each cover and all openings on the cover (
(2) Each cover opening shall be secured in a closed, sealed position (
(i) To add material to, or remove material from the unit (this includes openings necessary to equalize or balance the internal pressure of the unit following changes in the level of the material in the unit);
(ii) To inspect or sample the material in the unit; or
(iii) To inspect, maintain, repair, or replace equipment located inside the unit.
(3) Each thief hatch cover shall be weighted and properly seated.
(4) Each PRV shall be set to release at a pressure that will ensure that natural gas emissions are routed through the closed-vent system to the vapor recovery system, the enclosed combustor, or the utility flare under normal operating conditions.
(b)
(1) Each closed-vent system must route all produced natural gas and natural gas emissions from production and storage operations to the natural gas sales pipeline or the control devices required by paragraph (a) of this section.
(2) All vent lines, connections, fittings, valves, relief valves, or any other appurtenance employed to contain and collect natural gas, vapor, and fumes and transport them to a natural gas sales pipeline and any VOC control equipment must be maintained and operated properly at all times.
(3) Each closed-vent system must be designed to operate with no detectable natural gas emissions.
(4) If any closed-vent system contains one or more bypass devices that could be used to divert all or a portion of the natural gas emissions, from entering a natural gas sales pipeline and/or any control devices, the owner or operator must meet one of the following requirements for each bypass device:
(i) At the inlet to the bypass device that could divert the natural gas emissions away from a natural gas sales pipeline or a control device and into the atmosphere, properly install, calibrate, maintain, and operate a natural gas flow indicator that is capable of taking continuous readings and sounding an alarm when the bypass device is open such that natural gas emissions are being, or could be, diverted away from a natural gas sales pipeline or a control device and into the atmosphere;
(ii) Secure the bypass device valve installed at the inlet to the bypass device in the non-diverting position using a car-seal or a lock-and-key type configuration;
(iii) Low leg drains, high point bleeds, analyzer vents, open-ended valves or lines, and safety devices are not subject to the requirements applicable to bypass devices.
(c)
(1) For each enclosed combustor or utility flare, the owner or operator must follow the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions;
(2) For each enclosed combustor or utility flare, the owner or operator must ensure there is sufficient capacity to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 98.0 percent for the minimum and maximum natural gas volumetric flow rate and BTU content routed to the device;
(3) Each enclosed combustor or utility flare must be operated to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 98.0 percent;
(4) The owner or operator must ensure that each utility flare is designed and operated in accordance with the requirements of 40 CFR 60.18(b) for such flares.
(5) The owner or operator must ensure that each enclosed combustor is:
(i) A model demonstrated by a manufacturer to the meet the VOC destruction efficiency requirements of §§ 49.140 through 49.147 using the procedure specified in 40 CFR part 60, subpart OOOO at § 60.5413(d) by the due date of the first annual report as specified in § 49.147(b); or
(ii) Demonstrated to meet the VOC destruction efficiency requirements of §§ 49.140 through 49.147 using EPA approved performance test methods specified in 40 CFR part 60, subpart OOOO at § 60.5413(b) by the due date of the first annual report as specified in § 49.147(b); or
(iii) Until such time that 40 CFR part 60, subpart OOOO is promulgated, demonstrated to meet the VOC destruction efficiency requirements of §§ 49.140 through 49.147 by using the EPA approved performance test methods specified in 40 CFR part 63, subpart HH at § 63.772(e)(1)(i) through (iii) for hazardous air pollutants, by the due date of the first annual report as specified in § 49.147(b).
(6) The owner or operator must ensure that each enclosed combustor and utility flare is:
(i) Operated properly at all times that natural gas is routed to it;
(ii) Operated with a liquid knock-out system to collect any condensable vapors (to prevent liquids from going through the control device);
(iii) Equipped with a flash-back flame arrestor;
(iv) Equipped with one of the following:
(A) A continuous burning pilot flame, a thermocouple, and a malfunction alarm and remote notification system if the pilot flame fails.
(B) An electronically controlled auto-ignition system with a malfunction alarm and remote notification system if the pilot flame fails while produced natural gas or natural gas emissions are flowing to the enclosed combustor or utility flare;
(v) Equipped with a continuous recording device, such as a chart recorder, data logger or similar device, or connected to a Supervisory Control and Data Acquisition (SCADA) system, to monitor and document proper operation of the enclosed combustor or utility flare;
(vi) Maintained in a leak-free condition; and
(vii) Operated with no visible smoke emissions.
(d)
(1) The owner or operator must develop written operating instructions, operating procedures and maintenance schedules to ensure good air pollution control practices for minimizing emissions from the pit flare based on the site-specific design.
(2) The owner or operator must only use a pit flare for the following operations:
(i) To control produced natural gas and natural gas emissions during well completion operations or recompletion operations;
(ii) To control natural gas emissions in the event that natural gas recovered for pipeline injection must be diverted to an emergency control device because injection is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational. Use of the pit flare for this situation is limited to a maximum of 500 hours in any twelve (12) consecutive months during periods when pipeline injection has become temporarily infeasible and no enclosed combustor or utility flare installed at the facility is operational; or
(iii) Control of standing, working, breathing, and flashing losses from the produced oil storage tanks and any produced water storage tank interconnected with the produced oil storage tanks if the uncontrolled potential VOC emissions from the aggregate of all produced oil storage tanks and produced water storage tanks interconnected with produced oil storage tanks is less than, and reasonably expected to remain below, 20 tons in any consecutive 12-month period.
(3) The owner or operator must only use the pit flare under the following conditions and limitations:
(i) The pit flare is operated to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 90.0 percent;
(ii) The pit flare is operated in accordance with the site-specific written operating instructions, operating procedures, and maintenance schedules to ensure good air pollution control practices for minimizing emissions;
(iii) The pit flare is operated with no visible smoke emissions;
(iv) The pit flare is equipped with an electronically controlled auto-ignition system with a malfunction alarm and remote notification system if the pilot flame fails;
(v) The pit flare is visually inspected for the presence of a pilot flame anytime produced natural gas or natural gas emissions are being routed to it. Should the pilot flame fail, the flame must be relit as soon as safely possible and the electronically controlled auto-ignition system must be repaired or replaced before the pit flare is utilized again; and
(vi) The owner or operator does not deposit or cause to be deposited into a flare pit any oil field fluids or oil and natural gas wastes other than those designed to go to the pit flare.
(e)
(1) In operating such control devices, the owner or operator must follow the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions; and
(2) The owner or operator must ensure there is sufficient capacity to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to such other control devices by at least 98.0 percent for the minimum and maximum natural gas volumetric flow rate and BTU content routed to each device.
(3) The owner or operator must operate such a control device to reduce the mass content of VOC in the produced natural gas and natural gas emissions routed to it by at least 98.0 percent.
(a) Each owner and operator must measure the barrels of oil produced at the oil and natural gas production facility each time the oil is unloaded from the produced oil storage tanks using the methodologies of tank gauging or positive displacement metering system, as appropriate, as established by the US Department of the Interior's Bureau of Land Management at 43 CFR part 3160, in the “Onshore Oil and Gas Operations; Federal and Indian Oil & Gas Leases; Onshore Oil and Gas Order No. 4; Measurement of Oil.”
(b) Each owner or operator must monitor the hours that each pit flare is operated to control natural gas emissions in the event that natural gas recovered for pipeline injection must be diverted to an emergency control device because injection is temporarily infeasible and the enclosed combustor or utility flare installed at the oil and natural gas production facility is not operational.
(c) Each owner or operator must monitor the volume of produced natural gas sent to each enclosed combustor, utility flare, and pit flare at all times. Methods to measure the volume include, but are not limited to, direct measurement and gas-to-oil ratio (GOR) laboratory analyses.
(d) Each owner or operator must monitor the volume of standing, working, breathing, and flashing losses from the produced oil and produced water storage tanks sent to each vapor recovery system, enclosed combustor, utility flare, and pit flare at all times. Methods to measure the volume include, but are not limited to, direct measurement or GOR laboratory analyses.
(e) Each owner or operator must perform quarterly visual inspections of tank thief hatches, covers, seals, PRVs, and closed vent systems to ensure proper condition and functioning and repair any damaged equipment. The quarterly inspections must be performed while the produced oil and produced water storage tanks are being filled.
(f) Each owner or operator must perform quarterly visual inspections of the peak pressure and vacuum values in each closed vent system and control system for the produced oil and produced water storage tanks to ensure that the pressure and vacuum relief set-points are not being exceeded in a way that has resulted, or may result, in venting and possible damage to equipment. The quarterly inspections must be performed while the produced oil and produced water storage tanks are being filled.
(g) Each owner or operator must monitor the operation of each enclosed combustor, utility flare, and pit flare to confirm proper operation as follows:
(1) Continuously monitor the enclosed combustor, utility flare, and pit flare operation, using a malfunction alarm and remote notification system for failures, and checking the system for proper operation whenever an operator is on site, at a minimum quarterly;
(2) Continuously monitor all variable operational parameters specified in the written operating instructions and procedures;
(3) Using EPA Reference Method 22 of 40 CFR part 60, Appendix A, confirm that no visible smoke emissions are present, except for periods not to exceed a total of 2 minutes during any hour, during operation of any enclosed combustor, utility flare, or pit flare whenever an operator is on site; at a minimum quarterly. The observation period shall be 1 hour; and
(4) Respond to any observation of improper monitoring equipment operation or any pilot flame failure alarm and ensure the monitoring equipment is returned to proper operation and/or the pilot flame is relit as soon as practicable and safely possible after an observation or an alarm sounds.
(h) Where sufficient to meet the monitoring and recordkeeping requirements in § 49.145 and § 49.146, the owner or operator may use a
(a) Each owner or operator must maintain the following records:
(1) The measured barrels of oil produced at the oil and natural gas production facility each time the oil is unloaded from the produced oil storage tanks;
(2) The volume of produced natural gas sent to each enclosed combustor, utility flare, and pit flare at all times;
(3) The volume of natural gas emissions from the produced oil storage tanks and produced water storage tanks sent to each enclosed combustor, utility flare, and pit flare at all times;
(4) For each oil and natural gas well completion operation and recompletion operation at an oil and natural gas production facility:
(i) Records identifying each oil and natural gas well completion operation and recompletion operation for each oil and natural gas production facility; and
(ii) The latitude and longitude location of the oil and natural gas well; the date, time, and duration of flowback from the oil and natural gas well; the date, time, and duration of any venting of produced natural gas from the oil and natural gas well; and specific reasons for each instance of venting in lieu of capture or combustion. The duration must be specified in hours.
(5) For each enclosed combustor, utility flare, and pit flare at an oil and natural gas production facility:
(i) Written, site-specific designs, operating instructions, operating procedures and maintenance schedules;
(ii) Records of all required monitoring of operations;
(iii) Records of any deviations from the operating parameters specified by the written site-specific designs, operating instructions, and operating procedures. The records must include the enclosed combustor, utility flare, or pit flare's total operating time during which a deviation occurred, the date, time and length of time that deviations occurred, and the corrective actions taken and any preventative measures adopted to operate the device within that operating parameter;
(iv) Records of any instances in which the pilot flame is not present or the monitoring equipment is not functioning in the enclosed combustor, the utility flare, or the pit flare, the date and times of the occurrence, the corrective actions taken, and any preventative measures adopted to prevent recurrence of the occurrence;
(v) Records of any instances in which a recording device installed to record data from the enclosed combustor, utility flare, or pit flare is not operational; and
(vi) Records of any time periods in which visible smoke emissions are observed emanating from the enclosed combustor, utility flare, or pit flare.
(6) For each pit flare at an oil and natural gas production facility, a demonstration of compliance with the use restrictions set forth in § 49.144(d)(2)(ii) is made by keeping records in a log book, or similar recording system, during each period of time that the pit flare is operating. The records must contain the following information:
(i) Date and time the pit flare was started up and subsequently shut down;
(ii) Total hours operated when pipeline injection was temporarily infeasible for the current calendar month plus the previous consecutive eleven (11) calendar months; and
(iii) Brief descriptions of the justification for each period of operation.
(7) Records of any instances in which any closed-vent system or control device was bypassed or down, the reason for each incident, its duration, and the corrective actions taken and any preventative measures adopted to avoid such bypasses or downtimes; and
(8) Documentation of all produced oil storage tank and produced water storage tank inspections required in § 49.145(d) and (e). All inspection records must include, at a minimum, the following information:
(i) The date of the inspection;
(ii) The findings of the inspection;
(iii) Any adjustments or repairs made as a result of the inspections, and the date of the adjustment or repair; and
(iv) The inspector's name and signature.
(b) Each owner or operator must keep all records required by this section onsite at the facility or at the location that has day-to-day operational control over the facility and must make the records available to the EPA upon request.
(c) Each owner or operator must retain all records required by this section for a period of at least five (5) years from the date the record was created.
(a) Each owner or operator must submit any documents required under this section to: U.S. Environmental Protection Agency, Region 8 Office of Enforcement, Compliance & Environmental Justice, Air Toxics and Technical Enforcement Program, 8ENF-AT, 1595 Wynkoop Street, Denver, Colorado 80202. Documents may be submitted electronically to
(b) Each owner and operator must submit an annual report containing the information specified in paragraphs (b)(1) through (4) of this section. The annual report must cover the period for the previous calendar year. The initial annual report is due 1 year after the first date of production for the first oil and natural gas well at each oil and natural gas production facility or 1 year after August 15, 2012, whichever is later. Subsequent annual reports are due on the same date each year as the initial annual report. If you own or operate more than one oil and natural gas production facility, you may submit one report for multiple oil and natural gas production facilities provided the report contains all of the information required as specified in paragraphs (b)(1) through (4) of this section. Annual reports may coincide with title V reports as long as all the required elements of the annual report are included. The EPA may approve a common schedule on which reports required by §§ 49.140 through 49.147 may be submitted as long as the schedule does not extend the reporting period.
(1) The company name and the address of the oil and natural gas production facility or facilities.
(2) An identification of each oil and natural gas production facility being included in the annual report.
(3) The beginning and ending dates of the reporting period.
(4) For each oil and natural gas production facility, the information in paragraphs (b)(4)(i) through (iii) of this section.
(i) A summary of all required records identifying each oil and natural gas well completion or recompletion operation for each oil and natural gas production facility conducted during the reporting period;
(ii) An identification of the first date of production for each oil and natural gas well at each oil and natural gas production facility that commenced production during the reporting period; and
(iii) A summary of cases where construction or operation was not performed in compliance with the requirements specified in § 49.143, § 49.144, or § 49.145 for each oil and natural gas well at each oil and natural gas production facility, and the corrective measures taken.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes time-limited tolerances for residues of flutriafol in or on cotton, undelinted seed; cotton, meal; cotton, refined oil; and cotton gin byproducts. This action is in response to EPA's granting of an emergency exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on cotton. This regulation establishes a maximum permissible level for residues of flutriafol in or on cotton commodities. The time-limited tolerances expire on December 31, 2014.
This regulation is effective August 15, 2012. Objections and requests for hearings must be received on or before October 15, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2012-0324, is available either electronically through
Debra Rate, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 306-0309; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0324 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0324, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for combined residues of flutriafol, its metabolites and degradates, in or on cotton, undelinted seed at 0.35 parts per million (ppm); cotton, meal at 0.5 ppm; cotton, refined oil at 0.5 ppm; and cotton gin byproducts at 0.50 ppm. These time-limited tolerances expire on December 31, 2014.
Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include
Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
This is the first section 18 request received for the use of flutriafol on cotton. Texas had the worst one-year, 2011, drought since 1895 (Huber, 2011). Under the drought conditions cotton root rot fungus flourished on stressed cotton plants to reduce yields and produce more fungal inoculums that will remain viable for 5-8 years in the soil. The submitted information showed that in 2011, cotton growers suffered 30-66 percent yield losses in fields infested with cotton root rot. Fields infested with cotton root rot disease last year are expected to have even heavier losses this year unless the pest is effectively mitigated.
In Texas, approximately 12% of 2.4 million acres of cotton are infested with the root rot fungus. In 2012, yield losses are expected to be like 2011 or higher without the use of flutriafol. The severe drought condition of 2011 was a non-routine event that stressed cotton plants. The drought stressed cotton is more susceptible to the root rot fungus which causes high yield losses and build-up of fungal inoculums in soil. The drought condition and elevated pest pressure are likely to continue to cause severe yield losses in the 2012 growing season resulting in significant economic losses.
After having reviewed the submission, EPA determined that an emergency condition exists for this State, and that the criteria for approval of an emergency exemption are met. EPA has authorized a specific exemption under FIFRA section 18 for the use of flutriafol on cotton for control of cotton root rot, caused by the fungus
As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of flutriafol in or on cotton. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without advance notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2014, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on cotton, undelinted seed; cotton, meal; cotton, refined oil and cotton, gin byproducts after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether flutriafol meets FIFRA's registration requirements for use on cotton or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of flutriafol by a State for special local needs under FIFRA section 24(c). Nor do these tolerances by themselves serve as the authority for persons in any State other than Texas to use this pesticide on cotton absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for flutriafol, contact the Agency's Registration Division at the address provided under
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see
Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerances for combined residues of flutriafol, its metabolites and degradates, in or on cotton, undelinted seed at 0.35 ppm; cotton, meal at 0.5 ppm; cotton, refined oil at 0.5 ppm and cotton, gin byproducts at 0.5 ppm.
On November 9, 2011, the Agency published a final rule (76 FR 69643) (FRL-9325-6) establishing tolerances for residues of flutriafol, ((±)-[alpha]-(2-fluorophenyl)-[alpha]-(4-fluorophenyl)-1H-1,2,4-triazole-1-ethanol, in or on multiple commodities. Since the publication of that final rule, the Agency has conducted risk assessments evaluating the use of flutriafol on cotton under section 18 of FIFRA. These new risk assessments have not identified any changes to the hazard data, hazard characterization or end-points relied upon in the November 9, 2011, tolerance rule. The additional exposures and risks associated with residues resulting from the section 18 use on cotton are negligible and do not significantly change the previous acute and chronic aggregate risk. Therefore, establishing the time-limited tolerances on the cotton commodities will not change the most recent aggregate risks resulting from the use of flutriafol, as discussed in the November 9, 2011
Based on the risk assessments and findings discussed in the final rule published in the
An adequate enforcement methodology (gas chromatography/Nitrogen/Phosphorus detector (NPD) for tolerances and method ICIA AM00306 for ruminant liver) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350;
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex, Canada, and Mexico have not established MRLs for flutriafol in or on cotton commodities.
Therefore, time-limited tolerances are established for residues of flutriafol, [(±)-α-(2-fluorophenyl)-α-(4-fluorophenyl)-1 H -1,2,4-triazole-1-ethanol], including its metabolites and degradates, in or on cotton, undelinted seed at 0.35 ppm; cotton, meal at 0.5 ppm; cotton, refined oil at 0.5 ppm; and cotton, gin byproducts at 0.5 ppm. These tolerances expire on December 31, 2014.
This final rule establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(b)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of S-metolachlor in or on beet, garden, leaves, cilantro, leaves and coriander, seed. Interregional Research Project Number 4 requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 15, 2012. Objections and requests for hearings must be received on or before October 15, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0657, is available at
Sidney Jackson, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 305-7610; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0657 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0657, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
EPA received one comment to the Notice of Filing. That comment is addressed in Unit IV.C.
Based upon review of the data supporting the petition, EPA corrected the crop definition for “cilantro” to “coriander” and removed proposed tolerances for fresh and dried cilantro leaves. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for S-metolachlor including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with S-metolachlor follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
S-Metolachlor exhibits low acute toxicity via oral, inhalation, and dermal routes of exposure. It causes slight eye irritation, and is non-irritating dermally, but is a dermal sensitizer. In subchronic (metolachlor and S-metolachlor) and chronic (metolachlor) toxicity studies in dogs and rats decreased body weight and body weight gain were the most commonly observed effects. No systemic toxicity was observed when metolachlor was administered dermally. No neurotoxicity studies with metolachlor or S-metolachlor are available. However, there was no evidence of neurotoxic effects in the available toxicity studies. Prenatal developmental studies in the rat and rabbit with both metolachlor and S-metolachlor revealed no evidence of a qualitative or quantitative susceptibility in fetal animals. A 2-generation reproduction study with metolachlor in rats showed no evidence of parental or reproductive toxicity. There are no residual uncertainties with regard to pre- and/or postnatal toxicity. Metolachlor has been evaluated for carcinogenic effects in the mouse and the rat. Metolachlor did not cause an increase in tumors of any kind in mice. In rats, metolachlor caused an increase in benign liver tumors in rats but this increase was seen only at the highest dose tested and was statistically significant compared to controls only in females. There was no evidence of mutagenic or cytogenetic effects
Specific information on the studies received and the nature of the adverse effects caused by S-metolachlor as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD), and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for S-metolachlor used for human risk assessment is discussed in Unit III. of the final rule published in the
1.
Both the acute and chronic analyses assume tolerance-level residues on all crops with established, pending, or proposed tolerances for metolachlor and/or S-metolachlor. In cases where separate tolerance listings occur for both metolachlor and S-metolachlor on the same commodity, the higher value of the two is used in the analyses.
i.
Such effects were identified for S-metolachlor. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture's (USDA) Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), 1994-1996 and 1998. As to residue levels in food, EPA assumed tolerance level residues for all uses, 100 percent crop treated (PCT) for all commodities and default processing factors.
ii.
iii.
iv.
2.
Based on the First Index Reservoir Screening Tool (FIRST), Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) Screening Concentration in Ground Water (SCI-GROW) models and the USGA National Water-Quality Assessment (NAWQA) Program monitoring data, the Agency calculated conservative estimated drinking water concentrations (EDWCs) of S-metolachlor and metolachlor originating from ground water and surface water. EDWCs for metolachlor and metolachlor were calculated for both the parent compound and the ethanesulfonic acid (ESA) and oxanilic acid (OA) degradates. The environmental fate data have been bridged from the racemic mixture (50:50) of metolachlor to the newer isomer (88:12) S-metolachlor, based on similarities in environmental fate behavior. Tier I and Tier II screening models were employed for this assessment. For surface water, PRZM/EXAMS and FIRST Version1.1.1 models were used to estimate drinking water concentrations for the parent S-metolachlor and the ESA and OA degradates, respectively. The SCI-GROW model was used to predict the maximum acute and chronic concentrations present in shallow groundwater. Current NAWQA monitoring data were also used to determine EDWCs. Based on monitoring and modeling data, total EDWCs for peak and average surface water respectively are 219 ppb (78 ppb parent + 48 ppb metolachlor ESA+ 94 ppb metolachlor OA) and 119 ppb (18 ppb parent + 34 ppb metolachlor ESA+ 67 ppb metolachlor OA). Groundwater EDWCs (peak and average) are 126 ppb (33 ppb parent + 64 ppb metolachlor ESA+ 30 ppb metolachlor OA).y67
For acute exposures are estimated to be 219 ppb for surface water and 126 ppb for ground water.
For chronic exposures for non-cancer assessments are estimated to be 110 ppb for surface water and 126 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
For acute dietary risk assessment, the water concentration value of 219 ppb was used to assess the contribution to drinking water.
For chronic dietary risk assessment (cancer and non-cancer), the water concentration of value 126 ppb was used to assess the contribution to drinking water.
3.
S-Metolachlor is currently registered for the following uses that could result in residential exposures: Residential lawns or turf by professional applicators. Pennant MAGNUM\TM (EPA Reg. No. 100-950) is labeled for use on commercial (sod farm) and residential warm-season turf grasses and other non-crop land including golf courses, sports fields, and ornamental gardens. Since Pennant MAGNUM\TM is not registered for homeowner purchase or use (i.e., used by professional/commercial applicators), the only potential short-term residential risk scenario anticipated is post-application hand-to-mouth exposure of children playing on treated lawns. S-metolachlor incidental oral exposure is assumed to include hand-to-mouth exposure, object-to-mouth exposure and exposure through incidental ingestion of soil. Small children are the population group of concern. Although the type of site that S-metolachlor may be used on varies from golf courses to ornamental gardens, the scenario chosen for risk assessment (residential turf use) represents what the Agency considers the likely upper-end of possible exposure.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
Other than metolachlor, EPA has not found S-metolachlor to share a common mechanism of toxicity with any other substances, and S-metolachlor does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that S-metolachlor does not have a common mechanism of toxicity with other substances.
For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3
i. The toxicity database for S-metolachlor is complete, except for an immunotoxicity and acute and subchronic neurotoxicity studies required under the amendments to the data requirements. However, based on the results of the available toxicity studies, there is no evidence of immunotoxicity or neurotoxicity. Thus, EPA does not expect these data to change the existing POD for risk assessment.
ii. There is no indication that S-metolachlor is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that S-metolachlor causes an increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
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S-metolachlor is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to S-metolachlor. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures including incidental oral exposure from all possible sources: Combined hand-to-mouth, object-to-mouth, and soil ingestion oral exposure result in an aggregate MOE of 860. Because EPA's level of concern for S-metolachlor is a MOE of 100 or below, these MOEs are not of concern.
4.
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Adequate enforcement methodologies (gas chromatography with nitrogen phosphorous detector (GC/NPD) method (Method I) for determining residues in/on crop commodities and a gas chromatography with mass spectroscopy detector (GC/MSD) method (Method II) for determining residues in livestock commodities) are available to enforce the tolerance expression. IR-4 and Syngenta have proposed a high pressure liquid chromatography with mass spectroscopy/mass spectroscopy (HPLC/MS/MS) enantiomer-specific method for the enforcement of the proposed tolerances, Method 1848-01. The method uses a chiral HPLC column to separate out the S-enantiomers (SYN506357 and SYN508500) of the hydrolysis products CGA-37913 and CGA-49751. This method has been determined to be adequate for enforcement purposes.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international
Neither Codex, Canada, or Mexico has established or proposed maximum residue limits (MRLs) for S-metolachlor on cilantro or garden beet leaves.
In the one comment received, the commenter objected to EPA approving use of this chemical and asked that EPA ban further use of this “toxic chemical.” The commenter went on to state that there are several toxic effects attributed to this chemical including evidence of carcinogenicity. The Agency understands the commenter's concerns and recognizes that some individuals believe that certain pesticide chemicals should not be permitted in our food. However, the existing legal framework provided by section 408 of the FFDCA states that tolerances may be set when persons seeking such tolerances have demonstrated that the pesticide meets the safety standard imposed by that statute. When new or amended tolerances are requested for residues of a pesticide in food or feed, the Agency, as is required by section 408 of the FFDCA, estimates the risk of the potential exposure to these residues. The Agency has concluded after this assessment, which includes the consideration of long-term animal studies with metolachlor and S-metolachlor, that there is a reasonable certainty that no harm will result from aggregate (food, water and non-dietary) human exposure to S-metolachlor and that, accordingly, the tolerances that will be established by this rule are “safe.” That assessment included a consideration of S-metolachlor's carcinogenic potential. As discussed in Unit III.A., EPA concluded that any potential cancer risk from S-metolachlor is addressed by the chronic risk assessment. That risk assessment showed no risks of concern.
The Agency does not differentiate between dry and fresh cilantro leaves. Therefore, the Agency is modifying the tolerance proposal and establishing a tolerance for S-metolachlor residues on cilantro, leaves.
Therefore, tolerances are established for residues of S-metolachlor in or on beet, garden, leaves at 1.8 ppm, cilantro, leaves at 8.0 ppm, and coriander, seed at 0.13 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a, and 371.
(a) * * *
(2) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of fludioxonil in or on multiple commodities which are identified and discussed later in this document, associated with pesticide petition (PP) 1E7853 and PP 1E7870. This regulation additionally revises several established tolerances, and removes several established permanent and time-limited tolerances. Interregional Research Project Number 4 (IR-4) and Syngenta Crop Protection, LLC, requested the tolerances associated with PP 1E7853 and PP 1E7870, respectively, under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 15, 2012. Objections and requests for hearings must be received on or before October 15, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0395, is available either electronically through
Laura Nollen, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 305-7390; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0395 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2012.
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0395, by one of the following methods:
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2011-0395 by one of the following methods:
In the
That notice additionally requested to amend established tolerances of fludioxonil in or on avocado from 0.45 ppm to 5.0 ppm; sapote, black from 0.45 ppm to 5.0 ppm; canistel from 0.45 ppm to 5.0 ppm; sapote, mamey from 0.45 ppm to 5.0 ppm; mango from 0.45 ppm to 5.0 ppm; papaya from 0.45 ppm to 5.0 ppm; sapodilla from 0.45 ppm to 5.0 ppm; star apple from 0.45 ppm to 5.0 ppm; longan from 1.0 ppm to 20 ppm; lychee from 1.0 ppm to 20 ppm; pulasan from 1.0 ppm to 20 ppm; rambutan from 1.0 ppm to 20 ppm; Spanish lime from 1.0 ppm to 20 ppm; and tomato from 0.50 ppm to 3.0 ppm. Upon approval of the aforementioned tolerances, the petition finally requested to amend 40 CFR 180.516 by removing the established tolerances for residues of fludioxonil in or on the following raw agricultural commodities: Onion, bulb at 0.2 ppm; onion, green at 7.0 ppm; caneberry subgroup 13A at 5.0 ppm; bushberry subgroup 13B at 2.0 ppm; Juneberry at 2.0 ppm; lingonberry at 2.0 ppm; salal at 2.0 ppm; grape at 1.0 ppm; strawberry at 2.0 ppm; vegetable, fruiting, group 8 at 0.01 ppm; tomatillo at 0.50 ppm; fruit, citrus, group 10 at 10 ppm; fruit, pome, group 11 at 5.0 ppm; and leafy greens subgroup 4A, except spinach at 30 ppm. That notice referenced a summary of the petition prepared on behalf of IR-4 by Syngenta Crop Protection, LLC, the registrant, which is available in the docket,
In the
Additionally, in the
Based upon review of the data supporting the petitions, EPA has revised the proposed tolerance levels and/or has revised the commodity definitions for several commodities. Additionally, EPA has removed several established tolerances and has determined that tolerances should be established in or on several livestock commodities. Finally, the Agency has revised the tolerance expression for all established commodities to be consistent with current Agency policy. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fludioxonil including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fludioxonil follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Fludioxonil is of low acute toxicity and is not a dermal sensitizer. For subchronic and chronic toxicity, the primary effects in the mouse and rat were similar and included decreased body weight and food consumption associated with clinical pathological and histopathological effects in the liver and kidney. In the subchronic dog study, diarrhea was the most sensitive indicator of toxicity. In contrast, in the chronic toxicity study in dogs, decreased body-weight gain in females was the most sensitive indicator of toxicity. Liver toxicity was observed in both dog studies at higher doses.
Fludioxonil is not developmentally toxic in rabbits. In a rat developmental toxicity study at the highest dose tested (HDT), fludioxonil caused an increase in fetal incidence and litter incidence of dilated renal pelvis in the presence of maternal toxicity. There was no quantitative or qualitative evidence of increased susceptibility to rats and rabbits following
EPA determined that fludioxonil poses a negligible cancer risk. This conclusion was based on the fact that cancer studies with fludioxonil only showed marginal evidence of cancer in one sex of one species. There was no evidence of carcinogenicity in mice when tested up to the limited dose 7,000 ppm. There was no evidence of carcinogenicity in male rats, but there was a statistically significant increase, both trend and pairwise, of combined hepatocellular tumors in female rats. The pairwise increase for combined tumors was significant at p = 0.03, which is not a strong indication of a positive effect. Further, statistical significance was only found when liver adenomas were combined with liver carcinomas. Finally, the increase in these tumors was within, but at the high end, of the historical controls. Fludioxonil was not mutagenic in the tests for gene mutations. However, based on the induction of polyploidy in the
Specific information on the studies received and the nature of the adverse effects caused by fludioxonil as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
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ii.
iii.
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2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of fludioxonil for surface water are expected to be 83.8 parts per billion (ppb) for acute exposures and 38.5 ppb for chronic exposures. The EDWCs of fludioxonil for ground water are expected to be 0.2 ppb for acute and chronic exposures.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 83.8 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 38.5 ppb was used to assess the contribution to drinking water.
3.
EPA assessed residential exposure using the following assumptions: Short-term inhalation for residential handler exposure scenarios, including mixing/loading/applying fludioxonil. Residential handler exposures were considered to be short-term only due to the infrequent use patterns associated with homeowner products. Additionally, EPA assessed potential short- and intermediate-term postapplication exposures to toddlers (children 1-2 years old) resulting from physical activities on turf. These included incidental oral exposures from hand-to-mouth, object-to-mouth, and incidental soil ingestion. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
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i. The toxicity database for fludioxonil is complete except for a 90-day inhalation study. The point of departure for assessing risk from inhalation exposure is being extrapolated from an oral study. The uncertainty associated with this extrapolation requires the retention of the 10X FQPA SF for these exposures.
ii. The only potential indicator of neurotoxicity in the fludioxonil toxicity database was convulsions noted in mice following handling at high doses. The convulsions were considered to be agonal in nature. Therefore, EPA has determined that there is no need for a developmental neurotoxicity study or an additional safety factor to account for neurotoxicity.
iii. There is no evidence that fludioxonil results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The acute dietary assessment for females 13-49 years old was unrefined, assuming 100 PCT and tolerance-level
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 310 for children 1-2 years old. Because EPA's level of concern for fludioxonil is a MOE of 100 or below, this MOE is not of concern.
Because the short-term oral and inhalation risks were estimated using the same oral POD, these routes of exposure could be combined for the adult short-term exposure assessment. However, because the level of concern for oral and inhalation routes of exposure are not the same (an MOE of <100 defines the level of concern for incidental oral risk while inhalation risk is defined by an MOE of <1,000) an aggregate risk index (ARI) was required to estimate aggregate risk for adults. Only adults are assumed to be exposed to a combination of oral and inhalation exposures because inhalation exposures for fludioxonil may occur only as to those who apply the pesticide. EPA identifies ARIs at or below one as a risk estimate of concern. The short-term aggregate ARI exposure estimates to fludioxonil residues for adults are 9.5 for the general population and 11 for adults 50 years and older.
4.
Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in an aggregate MOE of 105 for children 1-2 years old. Because EPA's level of concern for fludioxonil is a MOE of 100 or below, this MOE is not of concern.
5.
6.
Adequate high-performance liquid chromatography/ultraviolet light detector (HPLC/UV) methods (Syngenta Methods AG-597 and AG-597B) are available for enforcing tolerances for residues of fludioxonil in or on plant commodities. An adequate liquid chromatography, tandem mass spectrometry (LC-MS/MS) method (Analytical Method GRM025.03A) is available for enforcing tolerances for residues of fludioxonil in or on livestock commodities.
The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
There are no Codex MRLs established for the following tolerances associated with these petitions: Ginseng; tropical fruit commodities; onion, green, subgroup 3-07B; leaf petioles crop subgroup 4B; and fat of cattle, goat, horse, and sheep. The following United States tolerances being established by this action are harmonized with comparable Codex MRLs: Caneberry subgroup 13-07A at 5.0 ppm; bushberry subgroup 13-07B at 2.0 ppm; and fruit, pome, group 11-10 at 5.0 ppm; onion, bulb, subgroup 3-07A at 0.50 ppm; fruit, small vine climbing, except fuzzy
The following United States tolerances being established by this action cannot be harmonized with the comparable Codex MRL: Tomato; leafy greens subgroup 4A; vegetable, tuberous and corm, subgroup 1C; fruit, citrus, group 10-10; and fruit, pome, group 11-10. The residue data and use patterns in the United States for these commodities support a higher tolerance value than what is established by Codex. The Codex has proposed, though has not yet approved, MRLs on citrus fruits at 10 ppm and pome fruits at 5.0 ppm that would result in harmonization with the United States for these commodities.
Finally, EPA is establishing a tolerance on vegetable, fruiting, group 8-10, except tomato that is not harmonized with Codex MRLs on eggplant at 0.3 ppm or sweet peppers at 1 ppm, which are members of the fruiting vegetable crop group. The United States tolerance was established as the result of a joint review of residue field trial data with Canada's Pest Management Regulatory Agency (PMRA). Based on the EPA and PMRA review of the data supporting the petition, the resulting tolerance for vegetable, fruiting, group 8-10, except tomato is 0.5 ppm. This tolerance cannot be harmonized with the Codex MRLs on eggplant at 0.3 ppm and sweet peppers at 1 ppm since the MRLs are established for two individual members of the fruiting vegetable crop group at different levels.
EPA received one comment to the notice of filing for PP 1E7870, which requested additional information about the nature of the residue and the adverse effects noted from exposure to fludioxonil. A summary of information about the nature of the residue and the adverse effects from fludioxonil was available to the commenter in the docket at the time of the notice of filing. That information, as well as specific information on the nature of the residue, including physical and chemical characteristics, and the adverse effects caused by fludioxonil from the toxicity studies can be found in the supporting and related material at
Additionally, the Agency received one comment to the May 2, 2012 notice of filing for PP 1E7853. The commenter raised concerns about the proposal to increase an existing tolerance for fludioxonil 5-10 times the current level and further stated that EPA would need to amend the protocol and develop a completely new method. In response to these concerns, EPA notes that the appropriate residue field trial data to support the amended use pattern for a post-harvest use was submitted to the Agency. From the risk assessment for the action, which included review of the field trial data supporting petitioned-for tolerance amendments, EPA has determined that the tolerance levels to be established by the Agency are appropriate and safe.
Based on the data supporting the petitions, EPA revised the proposed tolerances on several commodities, as follows: Ginseng from 3.0 ppm to 4.0 ppm; vegetable, fruiting, group 8-10, except tomato from 0.7 ppm to 0.50 ppm; tomato from 3.0 ppm to 5.0 ppm; pineapple from 8.0 ppm to 20 ppm; and leaf petioles crop subgroup 4B from 14 ppm to 15 ppm. Upon review of the data supporting the petitions, EPA also determined that several tolerances should be established on livestock commodities, as follows: Milk at 0.01 ppm; cattle, goat, horse, and sheep meat at 0.01 ppm; meat byproducts of cattle, goat, horse, and sheep at 0.05 ppm; and fat of cattle, goat, horse, and sheep at 0.05 ppm. The Agency revised these tolerance levels based on analysis of the residue field trial data using the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedures.
Additionally, EPA revised the onion, bulb, subgroup 3-07A from 0.20 ppm to 0.50 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F from 1.0 ppm to 2.0 ppm; and berry, low growing, subgroup 13-07G, except cranberry from 2.0 ppm to 3.0 ppm, in order to align with the Codex MRLs associated with these tolerances.
EPA also removed the established tolerance in or on vegetable, leafy, except brassica, group 4 at 0.01 ppm, as it will be superseded by tolerances on leafy greens subgroup 4A at 30 ppm and leaf petioles subgroup 4B at 15 ppm. Similarly, EPA removed the established tolerance on vegetable, bulb, group 3 at 0.02 ppm, as the tolerance will be superseded by tolerances on bulb onion subgroup 3-07A at 0.50 ppm and green onion subgroup 3-07B at 7.0 ppm. In order to clarify the established vegetable, root and tuber, group 1 tolerance at 0.02 ppm, the Agency revised the entry to beet, sugar at 0.02 ppm. This change has been made because all other commodity members currently in crop group 1 will be superseded by tolerances in or on vegetable, root, except sugar beet, subgroup 1B at 0.75 ppm and vegetable, tuberous and corm, subgroup 1C at 6.0 ppm. EPA also revised the proposed commodity definitions to reflect the correct designation for fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F and dragon fruit.
Finally, the Agency has revised the tolerance expression to clarify:
1. That, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of fludioxonil not specifically mentioned; and
2. That compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression.
Therefore, tolerances are established for residues of fludioxonil, (4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1
Tolerances are established for residues of fludioxonil, (4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1-
This regulation additionally removes established tolerances in or on onion, bulb; onion, green; caneberry subgroup 13A; bushberry subgroup 13B; Juneberry; lingonberry; salal; grape; strawberry; vegetable, fruiting group 8; tomatillo; fruit, citrus, group 10; fruit, pome, group 11; leafy green subgroup 4A, except spinach; vegetable, tuberous and corm, except potato, subgroup 1D; vegetable, leafy, except brassica, group 4; and vegetable, bulb, group 3. This regulation also removes the time-limited tolerances in or on starfruit and pineapple. Finally, this regulation revises the established tolerance on vegetable, root and tuber, group 1 at 0.02 ppm to beet, sugar at 0.02 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(2) Tolerances are established for residues of the fungicide fludioxonil, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only the sum of fludioxonil, 4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1-
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is closing the White Hake Trimester Total Allowable Catch (TAC) Area to all common pool vessels fishing with trawl gear, sink gillnet gear, or longline/hook gear for the remainder of Trimester 1, through August 31, 2012. This action is necessary to prevent the common pool fishery from exceeding its Trimester 1 TAC or its annual catch limit for white hake. This rule is expected to slow the catch rate of white hake in the common pool fishery for the remainder of Trimester 1.
Effective August 15, 2012, through 2400 hours, August 31, 2012.
Sarah Heil, Fishery Policy Analyst, 978-281-9257, Fax 978-281-9135.
Regulations governing the NE multispecies fishery are found at 50 CFR part 648, subpart F. Beginning in fishing year (FY) 2012, the common pool's annual catch limit for each stock is apportioned into trimester total allowable catches (TACs). The regulations at § 648.82(n) require the Regional Administrator to close the Trimester TAC Area for a stock when available information supports a determination that 90 percent of the Trimester TAC is projected to be caught. The Trimester TAC Area for a stock will close to all common pool vessels fishing with gear capable of catching that stock for the remainder of the trimester. Any overages of a trimester TAC will be deducted from Trimester 3, and any overages of the common pool's annual catch limit will be deducted from the common pool's catch limit the following fishing year. Any uncaught portion of the Trimester 1 and Trimester 2 TAC will be carried over into the next trimester. Any uncaught portion of the common pool's annual catch limit may not be carried over into the following fishing year.
The FY 2012 common pool catch limit for white hake is 26 mt (57,320 lb). The Trimester 1 (May 1 through August 31) TAC is 10 mt (22,046 lb). Based on the best available data which includes vessel trip reports (VTRs), dealer reported landings, and vessel monitoring system (VMS) information, NMFS projected that 90 percent of the Trimester 1 TAC for white hake had been harvested on August 4, 2012. Therefore, Effective August 15, 2012, the White Hake Trimester TAC Area is closed for the remainder of Trimester 1, through August 31, 2012, to all common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear. The White Hake Trimester TAC Area will reopen to common pool vessels fishing with trawl, sink gillnet, and longline/hook gear at the beginning of Trimester 2, at 0001 hours, September 1, 2012.
This action is required by 50 CFR part 648, and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. This action closes the White Hake Trimester TAC Area for common pool vessels fishing with trawl gear, sink gillnet gear, and longling/hook gear through August 31, 2012. The regulations at § 648.82 require this action to ensure that the common pool fishery does not exceed its catch limits for white hake in fishing year 2012. The catch data indicating that 90 percent of the Trimester 1 TAC for white hake has been caught only recently became available. If implementation of this closure is delayed to solicit prior public comment, the white hake Trimester 1 TAC will be exceeded, thereby undermining the conservation objectives of the Fishery Management Plan. Any overage of the Trimester 1 TAC must be deducted from the Trimester 3 TAC, and any overage of the total catch limit in FY 2012 must be deducted from the FY 2013 catch limit. This would have adverse economic consequences on common pool vessels. The AA further finds, pursuant to 5
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; apportionment of reserves; request for comments.
NMFS apportions amounts of the non-specified reserve to the initial total allowable catch of arrowtooth flounder in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the fisheries to continue operating. It is intended to promote the goals and objectives of the fishery management plan for the Bering Sea and Aleutian Islands management area.
Effective August 10, 2012, through 2400 hrs, Alaska local time, December 31, 2012. Comments must be received at the following address no later than 4:30 p.m., Alaska local time, August 25, 2012.
You may submit comments on this document, identified by NOAA-NMFS 2012-0150, by any of the following methods:
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•
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Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.
Steve Whitney, 907-586-7269.
NMFS manages the groundfish fishery in the (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2012 initial total allowable catch (ITAC) of arrowtooth flounder in the BSAI was established as 21,250 metric tons (mt) by the final 2012 and 2013 harvest specifications for groundfish of the BSAI (77 FR 10669, February 23, 2012). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the ITAC for arrowtooth flounder in the BSAI needs to be supplemented from the non-specified reserve in order to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.
Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 1,075 mt to the arrowtooth flounder ITAC in the BSAI. This apportionment is consistent with § 679.20(b)(1)(i) and does not result in overfishing of a target species because the revised ITAC is equal to or less than the specifications of the acceptable biological catch in the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012).
The harvest specification for the 2012 arrowtooth flounder ITAC included in the harvest specifications for groundfish in the BSAI is revised as follows: 22,325 mt for arrowtooth flounder in the BSAI.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the arrowtooth flounder fishery in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 24, 2012.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801,
U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
Notice of proposed rulemaking.
This document proposes to amend the U.S. Customs and Border Protection (CBP) regulations to set forth the prohibitions and conditions that are applicable to the importation and exportation of rough diamonds pursuant to the Clean Diamond Trade Act, as implemented by the President in Executive Order 13312 dated July 29, 2003, and the Rough Diamonds Control Regulations (RDCR) issued by the Office of Foreign Assets Control of the U.S. Department of the Treasury. In addition to restating pertinent provisions of the RDCR, the proposed amendments would clarify that any U.S. person exporting from or importing into the United States a shipment of rough diamonds must retain for a period of at least five years a copy of the Kimberley Process Certificate that currently must accompany such shipments and make the copy available for inspection when requested by CBP. The document also proposes to require formal entry for shipments of rough diamonds.
Comments must be received on or before October 15, 2012.
You may submit comments, identified by docket number, by
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Brian Barulich, Regulations and Rulings, Office of International Trade, (202) 325-0059.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rulemaking. Comments that will provide the most assistance to CBP will reference a specific portion of the proposed rulemaking, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See
In response to the role played by the illicit trade in diamonds in fueling conflict and human rights violations in certain areas of the world, and to differentiate between the trade in conflict diamonds and the trade in legitimate diamonds, the United States and numerous other countries announced in the Interlaken Declaration of November 5, 2002, the launch of the Kimberley Process Certification Scheme (KPCS) for rough diamonds. Under the KPCS, participating countries prohibit the importation of rough diamonds from, or the exportation of rough diamonds to, a non-participant and require that shipments of rough diamonds from or to a participating country be controlled through the KPCS. The U.S. Secretary of State is responsible for providing an up-to-date listing of all participants in the KPCS. The most recent listing of participants was published in the
The Clean Diamond Trade Act (the Act), Public Law 108-19, 117 Stat. 631 (19 U.S.C. 3901
On July 29, 2003, the President issued Executive Order 13312 (published in the
CBP notes that persons importing into or exporting from the United States a shipment of rough diamonds must comply with the requirements of CBP, the Office of Foreign Assets Control (OFAC) of the Department of the Treasury (part 592 of title 31 of the Code of Federal Regulations (31 CFR part 592)), and the U.S. Census Bureau (15 CFR part 30). Such persons should also be aware of any relevant Internet postings, guidance documents, or
OFAC, acting pursuant to Executive Order 13312 and delegated authority, published in the
Among the requirements set forth in the RDCR is that all shipments of rough diamonds imported into, or exported from, the United States must be accompanied by an original Kimberley Process Certificate.
The U.S. Census Bureau issued notices on December 12, 2005, and April 3, 2007, respectively entitled “Notice of Request for Faxed Submission of Kimberley Process Certificates” and “Revised Notice of Request for Faxed Submission of Kimberley Process Certificates,” requiring importers, brokers, and parties involved in the export of rough diamonds to immediately fax their Kimberley Process Certificates (including voided certificates) to the U.S. Census Bureau upon clearance of their shipments into the commerce of the United States by CBP or upon export of their shipments from the United States, as applicable.
CBP is proposing to amend the CBP regulations to set forth the prohibitions and conditions that are applicable to the importation into, and the exportation from, the United States of rough diamonds pursuant to the Act, Executive Order 13312, and the RDCR. This document proposes to add a new § 12.152 to 19 CFR part 12 to set forth these prohibitions and conditions.
Because CBP (along with ICE, OFAC, and the U.S. Department of State) is involved in the administration and enforcement of the import and export requirements relating to rough diamonds, CBP believes that it is appropriate and in the interests of the trading community to restate in the CBP regulations certain of the entry, export, and recordkeeping requirements currently set forth in the RDCR. The RDCR, at 31 CFR 592.301, requires any person importing a shipment of rough diamonds to have the original Kimberley Process Certificate at the time of importation and to present it if demanded by CBP. The RDCR further requires the ultimate consignee to retain the original Certificate for at least five years from the date of importation and to present it to CBP upon demand.
In accordance with section 5(b) of the Act, CBP is also proposing to require any U.S. persons exporting from the United States a shipment of rough diamonds to retain a copy of the Kimberley Process Certificate accompanying each shipment for a period of at least five years from the date of exportation and make the copy available for examination at the request of CBP.
CBP believes that these recordkeeping requirements will assist it in verifying whether importations of rough diamonds are properly controlled by the KPCS. The legal authority for these proposed requirements are discussed in further detail in the following discussion of each of the paragraphs in proposed new § 12.152, and new § 163.2(b), and the amendments to the Interim (a)(1)(A) list in section IV of the Appendix to part 163.
Paragraph (a) provides a brief summary of the KPCS, the Act, Executive Order 13312, and the RDCR. Paragraph (a) also indicates that persons importing into, or exporting from, the United States a shipment of rough diamonds must comply with the requirements of CBP, OFAC, and the U.S. Census Bureau.
Paragraph (b) sets forth certain definitions of terms derived from 19 U.S.C. 3902, section 3 of the Act, Annex I of the Kimberley Process Certification Scheme, and subpart C of the RDCR (subpart C of 31 CFR part 592).
Paragraph (c) reflects the requirement in § 592.301 of the RDCR (31 CFR 592.301) that a shipment of rough diamonds imported into, or exported from, the United States, must be accompanied by an original Kimberley Process Certificate.
Pursuant to the authority provided in 19 U.S.C. 1484 and 1498(a)(1)(B), paragraph (d) requires formal entry when importing a shipment of rough diamonds.
Pursuant to the authority provided in 19 U.S.C. 1484(a)(1)(A), paragraph (e) requires brokers, importers, and filers making entry of a shipment of rough diamonds into the United States to either submit through CBP's Automated Broker Interface (ABI) system the unique identifying number of the Kimberley Process Certificate accompanying the shipment or, for non-ABI entries, indicate the certificate number on the CBP Form 7501, Entry Summary, on each applicable line item.
Paragraph (f)(1) reflects the requirement in 31 CFR 592.301 that the ultimate consignee of a shipment of rough diamonds imported into the United States must retain the original Kimberley Process Certificate for a period of at least five years from the date of importation and must present the certificate to CBP upon request.
Paragraph (f)(2) reflects the requirement that the U.S. person importing into the United States a shipment of rough diamonds must retain a copy of the Kimberley Process Certificate for a period of at least five years from the date of importation and present the copy to CBP upon request, pursuant to section 5(b) of the Act as well as § 163.4, CBP regulations (19 CFR 163.4), which provides that (with certain exceptions not applicable here) any record required to be made, kept, and rendered for examination and inspection by CBP under § 163.2 or any other provision of this chapter must be kept for five years from the date of entry, if the record relates to an entry, or five years from the date of the activity which required creation of the record. Section 163.2 identifies importers as persons who must maintain records and render those records for examination by CBP. The Kimberley Process Certificate is a record required for the entry of merchandise, within the meaning of 19 U.S.C. 1509(a)(1)(A) and 19 CFR 163.1(a).
Similarly, paragraph (f)(3) requires any U.S. person exporting a shipment of rough diamonds from the United States to retain a copy of the Kimberley Process Certificate for a period of at least five years from the date of exportation and to present the copy to CBP upon request. This provision is being proposed in accordance with section 5(b) of the Act.
The requirements set forth in paragraphs (f)(2) and (3) are further supported by §§ 501.601 and 592.501 of the OFAC regulations (31 CFR 501.601 and 592.501), which provide, in pertinent part, that every person engaging in any transaction subject to the RDCR and other provisions of 31 CFR chapter V shall keep a full and accurate record of each such transaction engaged in, and such record shall be available for examination for at least five years after the date of such transaction.
In addition, CBP is proposing to amend part 163 by adding to § 163.2(c) a paragraph stating that any U.S. person exporting from the United States any rough diamonds must retain a copy of the Kimberley Process Certificate accompanying each shipment for a period of at least five years from the date of exportation. Section 163.2(c) would also state that failure to retain such records for at least five years may subject the exporter to penalties under 19 U.S.C. 3907.
CBP is also proposing to amend the Interim (a)(1)(A) list in Section IV of the Appendix to part 163 of 19 CFR to add the Kimberley Process Certificate to the list of documents that are required for the entry of special categories of merchandise. Finally, this document proposes to amend the list of control numbers assigned to information collections by the Office of Management and Budget (OMB) (pursuant to the Paperwork Reduction Act), which are set forth in 19 CFR 178.2, to add the information collections used by CBP to determine whether importations of rough diamonds are properly controlled by the KPCS.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this regulation.
The proposed rule seeks to increase CBP's ability to verify whether importations or exportations of rough diamonds are in compliance with the KPCS. OFAC published the RDCR (31 CFR part 592) requiring the ultimate consignee to retain the original of the Kimberley Process Certificate. The proposed amendments clarify that any U.S. person exporting from or importing into the United States a shipment of rough diamonds must retain a copy of the Kimberley Process Certificate for a period of five years and make this copy available for inspection at the request of CBP or face penalties pursuant to 19 U.S.C. 1509 or 3907. CBP believes the costs of retaining a copy of the Kimberley Process Certificate for five years and producing the copy to CBP upon request to be negligible.
This section examines the impact of the rule on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 601
The proposed rule seeks to increase CBP's ability to verify whether importations or exportations of rough diamonds are in compliance with the KPCS. OFAC published the RDCR (31 CFR part 592) requiring the ultimate consignee to retain the original of the Kimberley Process Certificate, but not requiring this of the importer or the exporter. The proposed amendments clarify that any U.S. person exporting from or importing into the United States a shipment of rough diamonds must retain a copy of the Kimberley Process Certificate for a period of five years and make this copy available for inspection at the request of CBP or face penalties pursuant to 19 U.S.C. 1509 or 3907. Given that this rule will impose a penalty only for noncompliance, it is not feasible to estimate the number of small entities which could be affected by this rule. CBP does not believe any additional professional expertise will be required to adhere to this requirement, as the Kimberley Process Certificate will only need to be stored and presented for examination upon request of CBP. CBP believes the costs of retaining a copy of the Kimberley Process Certificate for five years and providing the copy to CBP upon request to be negligible. Due to these low compliance costs, CBP subject matter experts believe this regulation will neither increase non-compliance nor result in a substantial number of small entities receiving penalties. CBP did not consider alternatives to the proposed rule for small entities because it does not impose any significant additional operational or labor costs on small
Because the penalty for noncompliance may be greater than $500 (in 1980 dollars), constituting a significant impact for a small entity, the economic impact of noncompliance with this would be considered significant. However, as discussed above CBP subject matter experts do not believe this rule will increase noncompliance with the KPCS for small entities. Thus, CBP does not believe this rule will have a significant impact on a substantial number of small entities. CBP welcomes any comments regarding this assessment. If CBP does not receive any comments contradicting this finding, CBP will certify that this rule will not have a significant economic impact on a substantial number of small entities at the final rule stage.
Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and an individual is not required to respond to, a collection of information unless it displays a valid OMB control number. The collections of information contained in these regulations are provided for by OMB control number 1505-0198, to cover the requirements concerning CBP Form 7501, and by OMB control number 1651-0076, to cover the recordkeeping requirement.
This document is being issued in accordance with § 0.1(a)(1) of the CBP Regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain customs revenue functions.
Customs duties and inspection, Economic sanctions, Entry of merchandise, Foreign assets control, Exports, Imports, Prohibited merchandise, Reporting and recordkeeping requirements, Restricted merchandise, Sanctions.
Administrative practice and procedure, Customs duties and inspection, Exports, Imports, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Imports, Reporting and recordkeeping requirement.
For the reasons set forth above, parts 12, 163, and 178 of title 19 of the Code of Federal Regulations (19 CFR parts 12, 163, and 178) are proposed to be amended as set forth below.
1. The general authority citation for part 12, CBP regulations, continues to read, and a new specific authority citation for § 12.152 is added to read, as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624.
Section 12.152 also issued under 19 U.S.C. 1484, 1498; the Clean Diamond Trade Act (Pub. L. 108-19, 117 Stat. 631 (19 U.S.C. 3901
2. In part 12, a new § 12.152 is added to read as follows:
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(i) Any United States citizen or any alien admitted for permanent residence into the United States;
(ii) Any entity organized under the laws of the United States or any jurisdiction within the United States (including its foreign branches); and
(iii) Any person in the United States.
(c)
(d)
(e)
(f)
(2)
(3)
3. The specific authority citation for part 163 is revised and the general authority citation continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1484, 1508, 1509, 1510, 1624.
4. Section 163.2(c) is revised to read as follows:
(c)
5. The Appendix to part 163 is amended by adding a new listing under § IV in numerical order to read as follows:
IV. * * *
6. The authority citation for part 178 continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 1624, 44 U.S.C. 3501
7. Section 178.2 is amended by adding a new listing to the table in numerical order to read as follows:
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed regulations relating to the disclosure of return under section 6103(1)(21) of the Internal Revenue Code, as enacted by the Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act of 2010.
The public hearing, originally scheduled for August 31, 2012 at 10 a.m. is cancelled.
Oluwafunmilayo Taylor of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration) at (202) 622-7180 (not a toll-free number).
A notice of proposed rulemaking and a notice of public hearing that appeared in the
The public comment period for these regulations expired on July 30, 2012. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Thursday, August 9, 2012, no one has requested to speak. Therefore, the public hearing scheduled for August 31, 2012, is cancelled.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to promulgate a Reservation-specific Federal Implementation Plan in order to regulate emissions from oil and natural gas production facilities located on the Fort Berthold Indian Reservation located in North Dakota. The proposed Federal Implementation Plan includes basic air quality regulations for the protection of communities in and adjacent to the Fort Berthold Indian Reservation. The proposed Federal Implementation Plan requires owners and operators of oil and natural gas production facilities to reduce emissions of volatile organic compounds emanating from well completions, recompletions, and production and storage operations. This Federal Implementation Plan would be implemented by EPA, or a delegated Tribal Authority, until replaced by a Tribal Implementation Plan. EPA is issuing an interim final rule for a Reservation-specific Federal Implementation Plan, concurrently with this proposed rule, for a Reservation-specific Federal Implementation Plan and any additional information can be found within the interim final rule under the same title.
Written comments must be received on or before October 15, 2012.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2012-0479, by one of the following methods:
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Deirdre Rothery, U. S. Environmental Protection Agency, Region 8, Air Program, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6431,
For further information on this proposed rule, please see the interim final action, of the same title, which is located in the Rules section of this
Note that Docket Number EPA-R08-OAR-2012-0479 is being used for both the interim final rule and the proposed rule.
EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time.
Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
Under the Toxic Substances Control Act (TSCA), EPA is proposing to amend a significant new use rule (SNUR) for perfluoroalkyl sulfonate (PFAS) chemical substances to add PFAS chemical substances that have completed the TSCA new chemical review process but have not yet commenced production or import, and to designate (for all listed PFAS chemical substances) processing as a significant new use. EPA is also proposing a SNUR for long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances that would designate manufacturing, importing, or processing for use as part of carpets or for treating carpet (
Comments must be received on or before October 15, 2012.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0268, by one of the following methods:
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You may be potentially affected by this action if you manufacture, process, or import any of the chemical substances listed in Table 4 of this unit.
Potentially affected entities may include, but are not limited to:
• Manufacturers or importers of one or more of subject chemical substances (North American Industrial Classification System (NAICS) codes 325 and 324110);
• Carpet and rug mills (NAICS code 314110),
• Fiber, yarn, and thread mills (NAICS code 31311),
• Home furnishing merchant wholesalers (NAICS code 423220), and
• Carpet and upholstery cleaning services (NAICS code 561740).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 721.5, 40 CFR 721.9582, and proposed 40 CFR 721.10536. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after September 14, 2012 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), (see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
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Under section 5(a)(2) of TSCA, EPA is proposing to amend a SNUR at § 721.9582 for PFAS chemical substances to add PFAS chemical substances that have completed the TSCA new chemical review process but have not yet commenced production or import, and to designate (for all listed PFAS chemical substances) processing as a significant new use. EPA is also proposing a SNUR for LCPFAC chemical substances that would designate manufacturing, importing, or processing for use as part of carpets or for treating carpet (
In this proposal, the term PFAS refers to a general category of perfluorinated sulfonate chemical substances of any chain length. The PFAS chemical substances for which EPA is proposing to modify an existing SNUR are currently listed in § 721.9582 in paragraph (a)(1). The PFAS chemical substances that EPA is proposing to add to an existing SNUR would be added to this list. All of these chemical substances are collectively referred to in this proposed rule as perfluoroalkyl sulfonates, or PFAS chemical substances.
The term LCPFAC refers to the long-chain category of perfluorinated carboxylate chemical substances with perfluorinated carbon chain lengths equal to or greater than seven carbons. The category of LCPFAC chemical substances also includes the salts and precursors of these perfluorinated carboxylates. See Unit IV.A for the specific definition of the LCPFAC category.
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)). As described in Unit II.C., the general SNUR provisions are found at 40 CFR part 721, subpart A.
General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. However, EPA is proposing that the articles exemption at 40 CFR 721.45(f) would not apply to imports of LCPFAC chemical substances as part of carpets under this proposed SNUR. As a result, persons subject to the provisions of this proposed rule would not be exempt from significant new use reporting if they import LCPFAC chemical substances as part of carpets. However, EPA is proposing that the articles exemption remain in effect for persons who process chemical substances as part of an article because, with respect to carpets, existing stocks may still contain LCPFAC substances. Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of Premanufacture Notices (PMNs) under TSCA section 5(a)(1)(A). In particular, these requirements include the information submissions requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6 or 7 to control the activities on which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Such persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B.
The PFAS chemical substances for which EPA is proposing to add additional significant new uses are already listed in § 721.9582 in paragraph (a)(1). The PFAS chemical substances that EPA is proposing to add to the existing PFAS SNUR are the subjects of PMN Case Numbers P-83-0126, P-90-0110, P-94-1508, P-94-1509B, P-98-0809, P-99-0296, and P-01-0035. The PMN submitters for these chemicals never commenced manufacturing or import of these chemicals. EPA considers that the commencement of manufacturing, import, or processing of these chemicals would thus significantly increase the magnitude and duration of exposure to humans and the environment. Given the structural similarity of these chemicals to the PFAS chemicals covered under 40 CFR 721.9582 and EPA's health and environmental concerns associated with these chemicals, EPA has concluded any manufacturing, import, or processing for any use of these uncommenced PFAS chemicals would be a significant new use and therefore, action on these PFAS chemicals is warranted.
All of these chemical substances are referred collectively in this proposed rule as perfluoroalkyl sulfonates, or PFAS chemical substances.
On October 18, 2000, EPA published in the
The Agency previously determined that the 271 PFAS chemical substances identified in 40 CFR 721.9582(a)(1) were no longer being manufactured or imported for any use in the United States, other than the uses listed under § 721.9582 (a)(3), (a)(4), and (a)(5) (67 FR 72858 and 72 FR 57225). In addition, since those chemicals are no longer manufactured or imported other than for the listed uses, EPA concluded that those chemical substances are also no longer processed other than for those listed uses.
PFAS chemical substances included in § 721.9582 were previously used in a variety of products, which can be divided into three main use categories: Surface treatments, paper protection, and performance chemicals (Ref. 6). In the past, PFAS chemical substances in the performance chemicals category were used in a wide variety of specialized industrial, commercial, and consumer applications. Specific applications included fire fighting foams, mining and oil well surfactants, acid mist suppressants for metal plating and electronic etching baths, alkaline cleaners, floor polishes, inks, photographic film, denture cleaners, shampoos, chemical intermediates, coating additives, carpet spot cleaners, and as an insecticide in bait stations for ants (Ref. 7). In 2000, the domestic production volume of the PFAS chemical substances containing eight carbons for the performance chemicals use category was estimated to be approximately 1.5 million pounds (Ref. 16).
PFAS chemical substances were also used for treating textiles, fabrics and carpet. These upholstery and fabric protectors were designed to protect rugs and carpets against soiling and restore their original look. Prior to 2003, these formulations were based on PFOS compounds, which contain eight perfluorinated carbons. After 2003, however, 3M, the primary manufacturer of these chemical substances, reformulated the product to be based on perfluorobutane sulfonate (PFBS) compounds containing four
The PFAS chemical substances that EPA is proposing to add to the existing PFAS SNUR are chemical substances that have completed the TSCA new chemical review process but have not yet commenced production or import. Any person who commences the manufacture or import of a new chemical substance for which that person previously submitted a section 5(a) notice must submit a notice of commencement of manufacture or import (40 CFR 720.102). EPA has not received any notices of commencements for these chemical substances, and there is currently no production or import of these chemical substances. If commenced, these chemical substances could be used for the PFAS uses described above, significantly increasing the magnitude and duration of exposure to humans and the environment, constituting a significant new use.
PFAS chemical substances degrade ultimately to perfluoroalkylsulfonic acid (PFASA), which can exist in the anionic form under environmental conditions. Further degradation of PFASA is not observed under normal environmental conditions. PFASA is highly persistent in the environment and has a tendency to bioaccumulate (Refs. 8 and 9). PFASA can continue to be formed by any PFAS containing chemical substances introduced into the environment.
Studies have found PFAS chemical substances containing five to fourteen carbons (C5-C14) in the blood of the general human population, as well as in wildlife, indicating that exposure to these chemical substances is widespread (Refs. 1, 2, and 10). The widespread presence of PFAS chemical substances in human blood samples nationwide suggests other pathways of exposure, possibly including the release of PFAS treated articles. EPA's Office of Research and Development (ORD) has conducted research on 116 articles of commerce documenting that PFCs contained in articles of commerce have the potential to be released from those articles and be transformed into PFAC (Ref. 1).
Biological sampling has shown the presence of certain perfluoroalkyl compounds in fish and in fish-eating birds across the United States and in locations in Canada, Sweden, and the South Pacific (Ref. 2). The wide distribution of the chemical substances in high trophic levels is strongly suggestive of the potential for bioaccumulation and/or bioconcentration.
Based on currently available information, EPA believes that while all PFAS chemical substances are expected to persist, the length of the perfluorinated chain may also have an effect on bioaccumulation and toxicity, which are also characteristics of concern for these chemical substances. PFAS chemical substances with longer carbon chain lengths may be of greater concern than those with shorter chain lengths (Refs. 11, 12, and 13).
The hazard assessment published by the Organization for Economic Cooperation and Development (OECD) (Ref. 15) concluded that perfluorooctyl sulfonates (PFOS) are persistent, bioaccumulative and toxic to mammalian species. While most studies to date have focused primarily on PFOS, structure-activity relationship analysis indicates that the results of those studies are applicable to the entire category of PFAS chemical substances, which includes PFOS. Available test data have raised concerns about their potential developmental, reproductive, and systemic toxicity (Refs. 1, 2, and 3).
For a more detailed summary of background information (
LCPFAC chemical substances are synthetic chemicals that do not occur naturally in the environment. The LCPFAC chemical substances are identified as follows, where n > 5 or m > 6:
This category definition of LCPFAC, based on the chemical structures above, refers to a large group of chemical substances containing perfluorooctanoic acid (PFOA) and its higher homologues. The category also includes the salts and precursors of these chemical substances. The precursors may be simple derivatives of PFOA and higher homologues or polymers that contain or may degrade to PFOA or higher homologues. These precursors include certain fluoropolymers and all fluorotelomers.
Currently, DuPont is the sole manufacturer of PFOA in the United States. In addition, PFOA, except possibly as part of articles, is not imported into the United States with the exception of the product manufactured by DuPont facilities overseas. According to EPA's 2006 Inventory Update Reporting database, the aggregated production volume of PFOA and ammonium perfluorooctanoate (APFO) was less than 500,000 pounds for each. APFO is the ammonium salt of PFOA, which dissociates to PFOA in water (Ref. 1).
Fluoropolymers such as polytetrafluoroethylene (PTFE), which may contain some PFAC contamination, or that use PFOA as an emulsion stabilizer in aqueous dispersions, are included in the LCPFAC definition and have a large U.S. market. The wire and cable industry is one of the largest segments of the fluoropolymer market, accounting for more than 35 percent of total U.S. fluoropolymer use. Apparel makes up about 10 percent of total fluoropolymer use, based on total reported production volume. Fluoropolymers are used in a wide variety of mechanical and industrial components, such as plastic gears, gaskets and sealants, pipes and tubing, O-rings, and many other products. Total U.S. demand for fluoropolymers in 2004 was between 50,000 and 100,000 metric tons. The United States accounted for less than 25 percent of the world consumption of PTFE in 2007, and between 25 and 50 percent of the world consumption of other fluoropolymers. PTFE is the most commonly used fluoropolymer, and the United States
Fluorotelomers, oligomers of tetrafluoroethylene, are relatively small functionalized molecules used to make polymers. World-wide production of fluorotelomer-based polymers (FTBP), was estimated at 20 million pounds in 2006. Fluorotelomer monomers and FTBP are included in the LCPFAC category definition as potential LCPFAC precursors. The United States accounts for more than 50 percent of world-wide fluorotelomer/FTPB production. Textiles and apparel account for approximately 50 percent of the volume, with carpet and carpet care products accounting for the next largest share in consumer product uses. Polymeric coatings, including those for paper products, are the third largest category of consumer product uses (Ref. 1). Articles tested and found to contain the highest levels of PFAC were carpet and carpet treatment products, various types of apparel, home textiles, thread sealant tape, floor wax and other sealants, and food contact paper and paper coatings.
LCPFAC chemical substances, including FTBP, were used in the textile market because of their thermo-stability, ability to adapt to a variety of surface characteristics, low refractive indexes, low dielectric constants, and high chemical stability. FTBP are used as soil retardants and stain repellents in carpets. FTBP are used to treat textiles which cannot be laundered, including carpets, by preventing or reducing the adhesion of liquid or solid contaminants to the textile fibers. Fluorotelomer carpet treatments are incorporated in polymers including fluorinated polyurethanes, fluorinated vinyl polymers and fluorinated acrylate and methacrylate polymers. Most of these fluorinated polymers have a non-fluorinated backbone with fluorinated alkyl chains which provide the desired physical characteristics. Fluorinated polyurethanes are noted to be tough but resilient and can withstand foot traffic on carpets (Ref. 18).
PFAS and LCPFAC chemical substances were used in carpets to impart stain, soil, and grease repellant properties (Ref. 18). There are four typical scenarios for chemical application that could lead to the presence of these chemical substances in carpet products, and this SNUR would apply to all of them. First, these chemical substances could be applied to carpet at a carpet and rug mill during the manufacturing process. Second, these chemical substances could be applied to carpet after the manufacturing process at a separate finishing facility. Third, treatment products containing these chemical substances could be applied to carpets in the aftermarket by consumers or professional carpet cleaners. In the described scenarios, LCPFAC chemical substances could have been domestically produced or imported. Fourth, treated carpet fabrics or treated carpet could be imported as articles. Domestically produced carpets could be made using imported fabrics that had been treated with PFAS or LCPFAC chemical substances or carpet containing these chemical substances could be imported into the United States as a final product.
The Agency believes that the LCPFAC chemical substances included in this proposal are no longer being manufactured, processed, or imported for use as part of carpet or for treating carpet (
The following summary of chemistry, environmental fate, exposure pathways, and health and environmental effects of LCPFAC chemical substances is based on the December 30, 2009 Long-Chain Perfluorinated Chemicals Action Plan (Ref. 1), as well as references cited in the 2009 Action Plan.
PFOA is the most studied chemical of the LCPFAC chemical substances. PFOA is manufactured for use primarily as an aqueous dispersion agent, as the ammonium salt, in the manufacture of fluoropolymers, such as PTFE, which have thousands of important manufacturing and industrial applications. PFOA can also be produced unintentionally by the degradation of some fluorotelomers, which are not manufactured using PFOA but could degrade to PFOA. Fluorotelomers are used to make polymers that impart soil, stain, grease, and water resistance to coated articles. Some fluorotelomer based products are also used as high performance surfactants in products where an even flow is essential, such as paints, coatings, cleaning products, and fire-fighting foams for use on liquid fuel fires.
FTBP can be applied to articles both at the factory and by consumers and commercial applicators in after-market uses such as carpet treatments and water repellent sprays for apparel and footwear (Ref. 18). Therefore, exposure to carpet treatment chemicals may occur both during and after the carpet manufacturing process. In 2008, EPA's ORD conducted research on 116 articles of commerce and found high levels of LCPFAC in carpet and carpet treatment products (levels were from 0.04-40,200 nanograms per gram) (Ref. 1). This is of particular concern for children since they engage in a variety of activities on carpets for longer periods of time in their earliest years and can be exposed to chemical substances in carpets via inhalation and dust ingestion (Ref. 1).
PFOA and its higher homologues are highly persistent chemical substances that are resistant to degradation under environmental conditions. The chemical substances which degrade to form these chemicals are called LCPFAC precursors. These precursors may be present in the final polymer product as residuals and the amount present in the polymer as perfluoroalkyl group (R
A limited number of studies on the degradation of fluorotelomers have been submitted in support of PMN submissions and existing chemical substances, and they have been published in the open literature. Based on studies, some fluorotelomer-based polymers are subject to hydrolysis, photolysis and biodegradation to some extent. Studies have shown half-lives of a few days to hundreds of years. In addition, existing research on degradation of fluorotelomers has shown that some urethanes and acrylates biodegrade; however, half-lives and kinetics of the fluorotelomers are not yet well defined (Ref. 22). Nevertheless, these studies have shown unambiguously that the perfluorinated portion of some polymers is released as the polymer is degraded by microbial or abiotic processes to form telomer alcohols or other intermediates and that they eventually form LCPFAC.
LCPFAC have been detected in biota, air, water, dust, and soil samples collected throughout the world. Some LCPFAC chemical substances have the potential for long-range transport. They are transported over long distances by a combination of dissolved-phase ocean and gas-phase atmospheric transport; however, determining which is the predominant transport pathway is complicated by many factors including the uncertainty over water to atmosphere partitioning. Furthermore, there is evidence that transport and subsequent oxidation of volatile alcohol LCPFAC precursors contribute to the levels of LCPFAC in the environment.
LCPFAC chemical substances have been detected in human blood samples throughout the United States and the world. These compounds have also been detected in human breast milk, liver, umbilical cord blood, and seminal plasma. Individual samples collected on perfluorinated chemical substances in the most recent National Health and Nutrition Examination Survey (NHANES) 1999-2009 are similar across teens and adults (Ref. 1); however, pooled data from NHANES 2001-2002 indicate that most of the levels of perfluorinated compounds are higher in children ages 3-11 years compared to adults. In addition, a 2009 Texas survey of 300 children reported PFOS, PFOA, perfluorohexanesulfonate (PFHS) and perfluorononanoic acid (PFNA) at higher levels in children 9 to 13 years than in 0 to 2 years (Ref. 1).
Multiple studies have reported a global distribution of LCPFAC in wildlife tissue and blood samples. LCPFAC have also been found in a variety of aquatic organisms. In general, the highest concentrations in wildlife have been found in the livers of fish-eating animals close to industrialized areas.
Animal studies of the straight-chain LCPFAC have shown that these compounds are well absorbed orally, but poorly eliminated; they are not metabolized, and they undergo extensive uptake from enterohepatic circulation. Studies of PFOA have shown that these compounds are distributed mainly to the serum, kidney, and liver, with liver concentrations being several times higher than serum concentrations; the distribution is mainly extracellular. PFOA has a high affinity for binding to B-lipoproteins, albumin, and liver fatty acid-binding protein. Studies have reported several LCPFAC chemical substances in umbilical cord blood, in amniotic fluid, and in blood samples from infants and toddlers (Ref. 1).
In general, the rate of elimination decreases with increasing chain length. Elimination in humans takes years (elimination half-life of PFOA is 2.3-3.8 years). These compounds will persist and bioaccumulate in humans, which means that comparatively low exposures may result in large body burdens.
LCPFAC bioaccumulate and persist in protein-rich compartments of fish, birds, and marine mammals, such as carcass, blood, and liver. Studies have found fish bioconcentration factor (BCF) values for C8 to C14 LCPFAC ranging from 4-40,000 in rainbow trout. Available evidence shows the likely potential for bioaccumulation or biomagnifications in marine or terrestrial species. Additional evidence that C14 and C15 LCPFAC bioaccumulate and are bioavailable is their presence in fish, invertebrates, and polar bears. The bioaccumulation of LCPFAC is thought to represent biomagnification due to high gastrointestinal uptake and slow elimination.
The toxicity of PFOA has been extensively studied and available data have raised concerns about LCPFAC chemical substances' potential developmental, reproductive, and systemic toxicity (Ref. 1). Although there is an extensive database for PFOA, few studies have examined the toxicity of other LCPFAC chemical substances. However, the data suggest that the toxicity profile is quite similar to that of PFOA, albeit at different dose levels.
As discussed in Units III and IV, PFAS and LCPFAC chemical substances are found world-wide in the environment, wildlife, and humans. They are bioaccumulative in wildlife and humans, and are persistent in the environment. They are toxic to laboratory animals, producing reproductive, developmental, and systemic effects in laboratory tests. The exact sources and pathways by which these chemicals move into and through the environment and allow humans and wildlife to become exposed are not fully understood, but are likely to include releases from manufacturing of the chemicals, processing of these chemicals into products like carpets and textiles, and aging and wear of products containing them.
Since the manufacture, import, and processing of PFAS and LCPFAC chemical substances for the proposed uses have been discontinued, EPA expects their presence in humans and the environment to decline over time as has been observed in the past when production and use of other persistent chemicals has ceased. EPA is concerned that the manufacturing, import (including import as part of certain articles), or processing of these chemical substances for the proposed new uses could be reinitiated in the future. If reinitiated, EPA believes that such use would increase the magnitude and duration of exposure to humans and the environment to these chemical substances, constituting a significant new use.
EPA is concerned about the potential for PFAS or LCPFAC chemical substances (manufactured or imported for an ongoing use) to be redirected to other uses without prior notice to the Agency. For example, a chemical substance may be initially manufactured or imported for a uses listed under § 721.9582(a)(3), (a)(4), or (a)(5), and then redirected for another use after its initial manufacture or import. EPA is therefore proposing to add the processing of a PFAS chemical substances (for any use in the United States, other than the uses listed under § 721.9582(a)(3), (a)(4), and (a)(5)) to the significant new uses of those chemical substances. For similar reasons, EPA is proposing to include the processing of LCPFAC chemical substances (for use as part of carpets or to treat carpet) among the significant new uses to be designated for those chemical substances. While the processing of articles containing PFAS and LCPFAC would remain exempt from notice
Accordingly, EPA wants the opportunity to evaluate and control, where appropriate, activities associated with those uses, if such manufacturing, importing, or processing were to start or resume. The required notification provided by a SNUN would provide EPA with the opportunity to evaluate activities associated with a significant new use and an opportunity to protect against unreasonable risks, if any, from exposure to PFAS and LCPFAC chemical substances.
Consistent with EPA's past practice for issuing SNURs under TSCA section 5(a)(2), EPA's decision to propose a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use. Rather, the Agency's action is based on EPA's determination that if the use begins or resumes, it may present a risk that EPA should evaluate under TSCA before the manufacturing or processing for that use begins. Since the new use does not currently exist, deferring a detailed consideration of potential risks or hazards related to that use is an effective use of resources. If a person decides to begin manufacturing or processing the chemical for the use, the notice to EPA allows EPA to evaluate the use according to the specific parameters and circumstances surrounding that intended use.
While the Agency is currently only proposing as significant new uses of LCPFAC chemical substances use as part of carpet or to treat carpet, the Agency believes the 2010/2015 PFOA Stewardship Program will eliminate many other ongoing uses of LCPFAC chemical substances. As those uses are phased out in the United States, EPA anticipates taking additional regulatory actions to prevent resumption of the uses without prior notice to EPA.
Based on the considerations in Unit V.A., EPA wants to achieve the following objectives with regard to the significant new use(s) that are designated in this proposed rule:
1. EPA would receive notice of any person's intent to manufacture, import, or process PFAS or LCPFAC chemicals for the described significant new use before that activity begins.
2. EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing PFAS or LCPFAC chemicals for the described significant new use.
3. EPA would be able to regulate prospective manufacturers, importers, or processors of PFAS or LCPFAC chemicals before the described significant new use of the chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6 or 7.
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors.
To determine what would constitute a significant new use of the PFAS and LCPFAC chemical substances subject to this proposed rule, as discussed herein, EPA considered relevant information about the toxicity of these substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in section 5(a)(2) of TSCA.
EPA has preliminarily determined that the manufacture, import, processing of any of the PFAS chemical substances subject to this proposed rule, for any use except ongoing uses specified in § 721.9582(a)(3) through (a)(5) of the regulatory text in this document, is a significant new use. EPA has also preliminarily determined that the manufacture, import, or processing of any of the LCPFAC chemical substances subject to this proposed rule for use as part of carpet or to treat carpets, is a significant new use, and further determined that importing any of the LCPFAC chemical substances subject to this proposed rule as part of carpet constitutes a significant new use and warrants making inapplicable the article exemption at § 721.45(f).
EPA welcomes comments on any aspect of this proposed SNUR. EPA requests comment on whether any of the uses proposed to be added as significant new uses are in fact ongoing, and would request specific documentation of any such ongoing use.
Before proposing this SNUR, EPA considered the following alternative regulatory actions:
Under a TSCA section 8(a) rule, EPA could, among other things, generally require persons to report information to the Agency when they intend to manufacture, import, or process a listed chemical for a specific use or any use. However, for PFAS and LCPFAC chemical substances, the use of TSCA section 8(a) rather than SNUR authority would have several limitations. First, if EPA was to require reporting under TSCA section 8(a) instead of TSCA section 5(a), EPA would not have the opportunity to review human and environmental hazards and exposures associated with the proposed significant new use and, if necessary, take immediate follow-up regulatory action under TSCA sections 5(e) or 5(f) to prohibit or limit the activity before it begins. In addition, EPA may not receive important information from small businesses, because such firms generally are exempt from TSCA section 8(a) reporting requirements. In view of the level of health and environmental concerns about PFAS and LCPFAC chemical substances if used for the proposed significant new use, EPA believes that a TSCA section 8(a) rule for this substance would not meet EPA's regulatory objectives.
EPA may regulate under TSCA section 6 if “the Administrator finds that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use or disposal of a chemical substance or mixture * * * presents or will present an unreasonable risk of injury to health or the environment.” (TSCA section 6(a)). Given that LCPFAC chemical substances are no longer being used as part of a carpet, and that the PFAS chemicals subject to this action have not commenced production or import, EPA concluded that risk management action under TSCA section 6 for these uses is not necessary at this
As discussed in the
EPA recognizes that TSCA section 5 does not usually require developing any particular test data before submission of a SNUN. There are two exceptions: (1) development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)); and (2) development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)). In the absence of a section 4 test rule or a section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25, and 40 CFR 720.50). However, as a general matter, EPA recommends that SNUN submitters include data that would permit a reasoned evaluation of risks posed by the chemical substance during its manufacture, import, processing, use, distribution in commerce, or disposal. EPA encourages persons to consult with the Agency before submitting a SNUN. As part of this optional pre-notice consultation, EPA would discuss specific data it believes may be useful in evaluating a significant new use. SNUNs submitted for significant new uses without any test data may increase the likelihood that EPA will take action under TSCA section 5(e) to prohibit or limit activities associated with this chemical.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs that provide detailed information on:
1. Human exposure and environmental releases that may result from the significant new uses of the chemical substance.
2. Potential benefits of the chemical substance.
3. Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what data may be useful in evaluating a significant new use. Discussions with the Agency prior to submission can afford ample time to conduct any tests that might be helpful in evaluating risks posed by the substance. According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers, importers, and processors of the chemical substance included in this proposed rule (Ref. 23). In the event that a SNUN is submitted, costs are estimated at approximately $8,571 per SNUN submission for large business submitters and $6,171 for small business submitters. These estimates include the cost to prepare and submit the SNUN, and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii), or, if they are a small business with annual sales of less than $40 million when combined with those of the parent company (if any), a reduced user fee of $100 (40 CFR 700.45(b)(1)). The costs of submission of SNUNs will not be incurred by any company unless a company decides to pursue a significant new use as defined in this proposed SNUR. EPA's complete economic analysis is available in the public docket for this proposed rule (Ref. 23).
Under section 12(b) of TSCA and the implementing regulations at 40 CFR part 707, subpart D, exporters must notify EPA if they export or intend to export a chemical substance or mixture for which, among other things, a rule has been proposed or promulgated under section 5. For persons exporting a substance the subject of a SNUR, a one-time notice must be provided for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications (i.e., the number of countries to which the chemical is exported). EPA is unable to make any estimate of the likely number of export notifications for the chemical covered in this proposed SNUR.
As indicated under
This action is not a “significant regulatory action” under the terms of Executive Order 12866, entitled
EPA has prepared an economic analysis of this action, which is contained in a document entitled
According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to believe that any State, local, or Tribal government would be impacted by this rulemaking. As such, EPA has determined that this regulatory action would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).
This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled
This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly or uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled
This action is not subject to Executive Order 13045, entitled
This proposed rule is not subject to Executive Order 13211, entitled
Since this action does not involve any technical standards; 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), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
1. The authority citation for part 721 continues to read as follows:
15 U.S.C. 2604, 2607, and 2625(c).
2. Add § 721.10536 to subpart E to read as follows:
(a)
(b)
(i) CF
(ii) CF
(iii) CF
(iv) CF
(v) CF
(vi) structurally similar degradation products of any of the compounds in (i) through (v) of this paragraph.
(2)
(c)
(1)
(2) [Reserved]
3. Section 721.9582 is amended by revising paragraph (a)(1) introductory text; by adding Table 4 to paragraph (a)(1) and by revising paragraphs (a)(2), (a)(3), (a)(4), and (a)(5) to read as follows:
(a)
(2) The significant new uses are:
(i) Manufacturing, importing, or processing of any chemical substance listed in Table 1 of paragraph (a)(1) of this section for any use.
(ii) Manufacturing, importing, or processing of any chemical substance listed in Table 2 of paragraph (a)(1) of this section for any use, except as noted in paragraph (a)(3) of this section.
(iii) Manufacturing, importing, or processing of any chemical substance listed in Table 3 of paragraph (a)(1) of this section for any use, except as noted in paragraphs (a)(3) through (a)(5) of this section.
(iv) Manufacturing, importing, or processing of any chemical substance listed in Table 4 of paragraph (a)(1) of this section for any use.
(3) Manufacturing, importing, or processing of any chemical substance listed in Table 2 and Table 3 of paragraph (a)(1) of this section for the following specific uses shall not be considered as a significant new use subject to reporting under this section:
(i) Use as an anti-erosion additive in fire-resistant phosphate ester aviation hydraulic fluids.
(ii) Use as a component of a photoresist substance, including a photo acid generator or surfactant, or as a component of an anti-reflective coating, used in a photomicrolithography process to produce semiconductors or similar components of electronic or other miniaturized devices.
(iii) Use in coating for surface tension, static discharge, and adhesion control for analog and digital imaging films, papers, and printing plates, or as a surfactant in mixtures used to process imaging films.
(iv) Use as an intermediate only to produce other chemical substances to be used solely for the uses listed in paragraph (a)(3)(i), (ii), or (iii) of this section.
(4) Manufacturing, importing, or processing of tetraethylammonium perfluorooctanesulfonate (CAS No. 56773-42-3) for use as a fume/mist suppressant in metal finishing and plating baths shall not be considered as a significant new use subject to reporting under this section. Examples of such metal finishing and plating baths include: Hard chrome plating; decorative chromium plating; chromic acid anodizing; nickel, cadmium, or lead plating; metal plating on plastics; and alkaline zinc plating.
(5) Manufacturing, importing, or processing of: 1-Pentanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,5-undecafluoro-, potassium salt (CAS No. 3872-25-1); Glycine, N-ethyl-N-[(tridecafluorohexyl)sulfonyl]-, potassium salt (CAS No. 67584-53-6); Glycine, N-ethyl-N-[(pentadecafluoroheptyl)sulfonyl]-, potassium salt (CAS No. 67584-62-7); 1-Heptanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6,7,7,7-pentadecafluoro-, ammonium salt (CAS No. 68259-07-4); 1-Heptanesulfonamide, N-ethyl-1,1,2,2,3,3,4,4,5,5,6,6,7,7,7-pentadecafluoro- (CAS No. 68957-62-0); Poly(oxy-1,2-ethanediyl), .alpha.-[2-[ethyl[(pentadecafluoroheptyl)sulfonyl]amino]ethyl]-.omega.-methoxy- (CAS No. 68958-60-1); or 1-Hexanesulfonic acid, 1,1,2,2,3,3,4,4,5,5,6,6,6-tridecafluoro-, compd. with 2,2′-iminobis[ethanol] (1:1) (CAS No. 70225-16-0) for use as a component of an etchant, including a surfactant or fume suppressant, used in the plating process to produce electronic devices shall not be considered a significant new use subject to reporting under this section.
Fish and Wildlife Service, Interior.
Notice of petition finding and initiation of status review.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Bicknell's thrush (
We request that we receive information on or before October 15, 2012. The deadline for submitting an electronic comment using the Federal eRulemaking Portal (see
You may submit information by one of the following methods:
(1)
(2)
This finding is available on the Internet at
We will post all information we receive on
Thomas R. Chapman, Supervisor, U.S. Fish and Wildlife Service, New England Field Office, 70 Commercial Street, Suite 300, Concord, New Hampshire 03301; by telephone at 603-223-2541. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.
When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly initiate review of the status of the species (status review). For the status review to be complete, and based on the best available scientific and commercial information, we request information on the Bicknell's thrush from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:
(1) The species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
(3) Information regarding the potential impacts to the species resulting from climate change, such as data, analyses, and predictions related to:
(a) The loss of spruce-fir forested habitat where the species breeds, including the projected impacts to the Canadian portion of the species' breeding range;
(b) Impacts to forest habitats in the Caribbean that provide important wintering habitat for the species; and
(c) Alterations to the cycling and productivity in balsam fir cone production that may alter population dynamics in red squirrels, a major predator of nestling Bicknell's thrush.
(4) Information regarding the ongoing and projected impacts of ground-level ozone emissions on spruce and fir in the northeastern United States and Maritime Provinces of Canada.
(5) Behavioral, survival, and reproductive consequences of various mercury accumulation levels in insectivorous songbirds.
(6) Impacts to the species resulting from the construction and operation of commercial wind turbines and transmission lines in breeding habitat, including habitat loss, mortality, productivity, and avoidance of turbines as a result of blade movements or noise.
(7) Existing regulatory mechanisms that may be protective of the Bicknell's thrush and its habitat, particularly on its wintering grounds in the Greater Antilles.
If, after the status review, we determine that listing the Bicknell's thrush is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:
(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;
(2) Where these features are currently found;
(3) Whether any of these features may require special management considerations or protection;
(4) Specific areas outside the geographical area currently occupied by the species that are “essential for the conservation of the species”; and
(5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your information concerning this status review by one of the methods listed in the
Information and supporting documentation that we received and used in preparing this finding is available for you to review at
Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly initiate a
On August 26, 2010, we received a petition, dated August 24, 2010, from Mollie Matteson, Center for Biological Diversity (CBD or petitioner), Northeast Field Office, requesting that the Bicknell's thrush be listed as threatened or endangered and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a September 9, 2010, letter to the petitioner, we responded that we would review the information presented in the petition and determine if listing of the Bicknell's thrush was warranted. This finding addresses the petition.
In 1994, the Bicknell's thrush was determined to be a category 2 species of concern and we announced that finding in the Animal Candidate Review for Listing as Endangered or Threatened Species (59 FR 58982). Category 2 was defined as including taxa for which the Service had information indicating that proposing to list as endangered or threatened is possibly appropriate, but for which persuasive data on biological vulnerability and threat are not currently available to support proposed rules. In 1996, the Service discontinued the list of category 2 candidate species, resulting in the removal of the Bicknell's thrush from candidate status (61 FR 64481).
Although the Bicknell's thrush was removed from the list of candidate species in 1996, the species was identified by the North American Bird Conservation Initiative as one of the Highest Priority Landbirds in the Atlantic Northern Forest (Dettmers 2006, p. 21), and the Service's New England Field Office has continued to amass information related to the species and to support conservation of the species.
On September 9, 2011, the U.S. District Court for the District of Columbia approved two settlement agreements: one agreement between the Service and CBD and a second agreement between the Service and WildEarth Guardians (WEG). The agreements enable the Service to systematically, over a period of 6 years, review and address the needs of more than 250 species listed on the 2010 Candidate Notice of Review (75 FR 69222). The agreements also include additional scheduling commitments for a small subset of the actions in the 6-year work plan that are consistent with the Service's objectives and biological priorities. For the Bicknell's thrush, the settlement agreement with WEG specifies that we will complete a 90-day petition finding by the end of fiscal year 2012.
The Bicknell's thrush (
The Bicknell's thrush was considered a subspecies of the gray-cheeked thrush until 1993. Ornithologists carefully evaluated the species' morphology, range, song, behavior, habitat, and genetic divergences and detected significant differences between the taxa. This evaluation subsequently led to the recommendation that the Bicknell's thrush be elevated to a full species (Ouellet 1993, p. 568). The American Ornithologist Union (1995, p. 824) recognizes the Bicknell's thrush as a species, and the Service concurs with that taxonomic change.
The Bicknell's thrush is a migratory species, meaning it travels between different geographical areas to fulfill life-history functions like breeding and raising its young. The species feeds predominantly on insects, but during migration and on its wintering grounds, the species can shift its diet almost entirely to the consumption of several varieties of small fruits (Beal 1915 in Wallace 1939, p. 295; Rimmer
The Bicknell's thrush breeds in portions of the northeastern United States and eastern and southern Canada and winters in the Greater Antilles. On its way between the breeding and wintering grounds, the Bicknell's thrush flies along the Atlantic coast and may stop in certain areas for resting and feeding. The breeding range of the species extends from the northern Saint Lawrence area of Quebec and the Maritime Canadian Provinces south through New England and New York to that State's Catskill Mountains (Wallace 1939, pp. 258-259; Ouellet 1993, pp. 563-564; Rimmer
The montane spruce-fir forests that this species prefers for breeding are typical of chronically disturbed areas associated with altered growing conditions resulting from human activities (e.g., ski trails) and natural processes. Natural disturbances include `terrific' winds, which can exceed 45 meters per second (mps) (100 miles per hour (mph)), and heavy rime ice accumulation that occurs when supercooled water droplets undergo rapid freezing upon contact with a cold surface (Wallace 1939, p. 282; Rimmer
The remaining global population of the Bicknell's thrush, or 37,000 to 49,000 birds, breeds in Canada (IBTCG 2010, p. 6). While Bicknell's thrush can be found in Canadian habitats associated with industrial forests at elevations as low as 175 m (574 ft), most are found in montane spruce-fir forests at elevations exceeding 600 m (1968 ft) (Ouellet 1993, pp. 560-563; Nixon
Although the Bicknell's thrush exhibits some flexibility in the elevation of breeding habitats used, the species demonstrates a strong preference for a specific vegetation structure. Breeding habitats in montane habitats or in lower elevation areas are characterized by dense vegetation (Rimmer
Breeding occurs in June, with males singing to attract a mate (Wallace 1939, p. 311; Rimmer
By the end of September, the Bicknell's thrush departs its breeding grounds (Wallace 1939, p. 259). Migration patterns are poorly known (Ouellet 1993, p. 564; Rimmer
Wintering occurs exclusively in the Greater Antilles, with the majority of birds on the island of Hispaniola, in Haiti and the Dominican Republic. The species can also be found on the islands of Cuba, Jamaica, and Puerto Rico (Rimmer
In spring, the birds leave the Greater Antilles, probably by late April (Rimmer
Conducting comprehensive surveys for the Bicknell's thrush is difficult because of the species' patchy distribution. As a result, Bicknell's thrush is under-represented in the United States' historical Breeding Bird Survey data, making detection of long-term trends difficult (Bystrak 1981, p. 38). However, several local extirpations from former breeding habitat have been detected (Rimmer
In Canada, the species has disappeared from Seal and Mud Islands in Nova Scotia (Committee on the Status of Endangered Wildlife in Canada (COSEWIC) 2009, p. 9), despite being relatively common at the time of Wallace's writing (1939, p. 331), when at least a dozen nests were found on Seal Island. Bicknell's thrush has also been absent from formerly occupied habitats on Cape Breton Island and Cape Forchu, Nova Scotia (COSEWIC 2009, p. 9; Rimmer
To obtain better information on the population status of all birds occupying high-elevation spruce-fir habitat in New Hampshire's White Mountains, a comprehensive survey was conducted during the period of 1993 to 2003 (King
In summary, the readily available current population trend information
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
(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.
In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat, and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.
In making this 90-day finding, we evaluated whether information regarding threats to the Bicknell's thrush, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
The petitioner asserts that the “primary threat to the long-term persistence of the Bicknell's thrush is habitat loss” (Center for Biological Diversity 2010 petition (Petition), p. 24). The petitioner concludes that “montane ecosystems that host populations of the Bicknell's thrush are small and fragmented, heightening their vulnerability to a number of complex, interrelated threats” (Petition, p. 24). “Foremost among these threats is global climate change,” the petitioner asserts, that will result in disappearance of montane forests from the species' current breeding range (Petition, p. 24). In addition to direct and indirect impacts of climate change, the petition also describes other factors that contribute to the loss of important breeding and wintering Bicknell's thrush habitat, including: (1) Acid rain deposition; (2) ground-level ozone and nitrogen atmospheric deposition; (3) recreational, telecommunication, and wind energy development activities; and (4) timber extraction that results in the conversion of breeding habitat to other land uses (Petition, pp. 6, 24).
The petitioner states that “Climate change represents the gravest threat to the long-term survival of the Bicknell's thrush” (Petition, p. 24). The petition provides an overview of global climate change research, including past, present, and predicted future climate change conditions (Petition, pp. 24-28). Following this overview of the scientific basis of global climate change, the petitioner discusses observed and predicted impacts to Bicknell's thrush habitat. The petitioner asserts that the predicted global climate change will result in increased July temperatures that could lead to a reduction in the amount of spruce-fir habitat for the Bicknell's thrush by over 95 percent (Petition, p. 29), as well as increase the frequency of erratic and severe weather events. The petition also cites references that indicate that climate change will result in drying trends for the Caribbean Basin that may reduce the suitability of important wintering habitats, as well as an increase in the frequency of tropical storms that may destroy habitat (Petition, pp. 31, 33).
Regarding climate change-induced increased summer temperatures in the Northeast, several studies provide relevant information. For example, the petitioner asserts that the Fourth Assessment Report: Climate Change 2007 (hereafter referred to as AR4), prepared by the Intergovernmental Panel on Climate Change (IPCC) presents the best available science on global climate change. We concur that the information on global climate change contained within AR4 is reliable. The IPCC concludes that warming of the climate system is unequivocal, as is now evident from observations of increase in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level (IPCC 2007, p. 2). Further, they attribute the warming to a 70 percent increase in greenhouse gas (mostly CO
This warming trend is expected to continue as a result of a projected increase of global greenhouse gas emissions by 25 to 90 percent between 2000 and 2030, which would be greater than the change observed during the 20th century (IPCC, p. 7). Although there is some uncertainty regarding the mechanics of climate change and how much temperatures will change, the projected global average surface temperature increase is estimated to range from 1.1 °C to 6.4 °C (2.0 °F and 11.5 °F) in 2090 to 2099, over the temperatures observed during the 19-year period of 1980 to 1999 (IPCC 2007, p. 8). Consistent with this increase in global average temperatures, at a regional scale, average annual temperatures in the northeastern United States are also projected to rise by 2.9 °C to 5.3 °C (5.0 °F to 10.0 °F) by 2070 to 2099, in comparison to the period of 1961 to 1990 (Hayhoe
The petition presents research, supported by readily available information in our files, which demonstrates that climate change-induced habitat loss has occurred
The montane spruce-fir forests of New York and northern New England provide breeding habitat for approximately 60 percent of the world's estimated Bicknell's thrush population (IBTCG 2010, p. 6). Rodenhouse
The petitioner indicates that she is unaware of any climate modeling for Canadian highland forests used by Bicknell's thrush (Petition, p. 31). This will be further investigated during our 12-month status review.
In regard to increasing frequency of storms, the petitioner also indicates that climate change will cause “more erratic and severe weather events” but acknowledges that how or to what extent the bird's breeding habitat will be impacted is unknown (Petition, p. 33). There is no information readily available to the Service specific to the expected frequency or intensity of storms that may impact montane spruce-fir breeding habitat, but this will be further investigated during our 12-month status review.
In addition to climate change impacts to breeding habitat, the petitioner asserts that the quality of wintering habitat for the Bicknell's thrush in the Greater Antilles will be reduced by climate change-induced drought (Petition, p. 31) and more intense and frequent El Niño Southern Oscillation events (Petition, p. 33). By 2050, the observed significant drying trends in the Caribbean are expected to reduce water resources (Neelin
The petition suggests that climate change may alter the disturbance dynamics of native forest insects and diseases, as well as facilitate the establishment and spread of nonindigenous species (Hunt
The spruce budworm (
Local extinction of balsam fir is one potential outcome of climate change-induced intensification of spruce budworm outbreaks (Fleming and Candau 1998, p. 246). However, a potential benefit of this change is that the Bicknell's thrush is known to use regenerating forests disturbed by spruce budworm infestations (COSEWIC 2009, p. 10; Bredin and Whittam 2009, p. 13). As we describe above in the Species Information section, Bicknell's thrush feed on many insects, including species of lepidopteran larvae (Wallace 1939, p. 295), which may include the spruce budworm.
The balsam woolly adelgid (
The petition asserts that deposition of acid and nitrogen poses a serious threat to Bicknell's thrush habitat throughout its high-elevation habitat (Petition 2010, pp. 33-36). Acid deposition, commonly referred to as acid rain, is mostly derived from the burning of fossil fuels, such as coal and gas, that results in the production of sulfur dioxide and nitrogen oxides that in turn react with atmospheric water, oxygen, and other chemicals to form various acidic compounds (U.S. Environmental Protection Agency (EPA) 2012,
Information in our files suggests that deposition of acid may have several implications for the Bicknell's thrush and its habitat. First, deposition of acidic ions is known to reduce soil calcium, which likely leads to calcium deficiencies that render red spruce needles vulnerable to freezing damage. This damage reduces a tree's tolerance to low temperatures and increases the occurrence of winter injury and subsequent mortality (DeHayes
Information in our files also suggests that deposition of nitrogen, a major plant nutrient, may also affect Bicknell's thrush habitat when the nitrogen deposition acts in concert with increased spruce-fir mortality resulting from deposition of acid; deposition of nitrogen, a major plant nutrient, may also affect Bicknell's thrush habitat. In high elevation spruce-fir forests, nutrient cycling is naturally low due to slower decomposition and low biological nitrogen demand; however, high-elevation areas receive greater amounts of atmospheric nitrogen than do low-elevation areas (McNulty
The petition goes on to suggest, without providing any supporting references, high spruce mortality, as a result of acid and nitrogen deposition, provides a more open canopy and may expose adult Bicknell's thrush to greater risk of predation. The petitioner states the increase in exposure requires resident thrushes to spend more time being vigilant for predators instead of spending more time and energy on other vital life functions (Petition, p. 33). There is no evidence presented with the petition to support this concern. In fact, information in our files indicates that Bicknell's thrush frequently sing from exposed perches atop dead snags (Rimmer
The petition suggests that ground-level ozone is another air pollutant that is putting Bicknell's thrush habitat at risk of long-term and potentially irreversible decline (Petition, p. 35). Ozone is the product of a reaction of sunlight on nitrogen oxide and hydrocarbons, which can cause foliage damage and lead to reduced growth in plants (Lovett and Tear 2008, pp. 4-5). To support this position, the petition provides information regarding the impacts that ground-level ozone has had on western conifers (Petition, p. 35). However, the petition acknowledges that ozone impacts to montane red spruce and balsam fir are not described. Likewise, we are also unaware of any information suggesting that ground-level ozone is impacting Bicknell's thrush habitat.
The petitioner asserts that development for recreation (i.e., ski areas), especially the cumulative effect of multiple ski areas, directly results in the loss and fragmentation of Bicknell's thrush breeding habitat (Petition, pp. 35-36). Information in our files demonstrates that this concern is shared by others; however, the cumulative effects of these threats across the range of the Bicknell's thrush are poorly known (Rimmer
In Vermont, 13 mountains that are greater than 915 m (3,000 ft) elevation are developed for recreational skiing, and many of these ski areas offer mountain bike activities during the Bicknell's thrush breeding season (Rimmer
Information in our files provides variable data on these developments' long-term impacts on local populations of the Bicknell's thrush. For example, research at the Stowe Mountain Resort on Mount Mansfield and the Stratton Mountain Resort in Vermont demonstrates that there are few differences in various Bicknell's thrush population and reproductive parameters (including nest predation, nest success, parental care, movement patterns, survivorship, or productivity) between habitat patches at the ski areas and natural forests on each of the respective resorts' mountains (Rimmer
In addition to ski area development, the petitioner asserts that infrastructure development for telecommunication and wind energy projects poses a threat to Bicknell's thrush habitat (Petition, p. 37). Wind and telecommunications structures are often placed on exposed high-elevation areas (Petition, p. 37), which may include areas of suitable Bicknell's thrush breeding habitat. Information in our files indicates that construction of wind and telecommunication facilities potentially impacts the species through habitat removal.
Limited information is available from existing or proposed wind turbine sites (MacFarland
There are few examples of completed wind turbine construction projects in Bicknell's thrush habitat, but MacFarland
The petition asserts that logging in Canada and northern Maine is “a prime threat” to Bicknell's thrush breeding habitat (Petition, pp. 37-39). Specifically, the petitioner suggests that dramatic drops in Bicknell's thrush presence at Canadian monitoring sites over the last 1 to 2 decades provide a clear indication that logging damages habitat and threatens the long-term survival of the species. However, information in our files suggests that the Bicknell's thrush is often found in managed forests, and it is unclear how forestry practices alter the amount and suitability of breeding habitat in Canada and northern Maine (IBTCG 2010, p. 11).
Throughout the industrial highlands of Canada and northern Maine, the practice of clearcutting may impact Bicknell's thrush by temporarily removing forest habitat. But, the petitioner acknowledges, and information in our files suggests, that regeneration of balsam fir and spruce in these areas is known to result in the creation of breeding habitat (Ouellet 1993, p. 566; Chisholm and Leonard 2008, p. 218; COSEWIC 2009, p. 31; IBTCG 2010, p. 11; Petition 2010, p. 38). Following clearcutting, dense regeneration of spruce and fir often follows, resulting in the creation of suitable Bicknell's thrush breeding habitat (Nixon
Information in our files suggests other forestry practices may also impact Bicknell's thrush habitat. Specifically, precommercial thinning that reduces stem densities to maximize growth in remaining trees results in the reduced abundance of Bicknell's thrush (Chisholm and Leonard 2008, p. 222). Precommercial thinning could also directly destroy Bicknell's thrush nests because thinning is often conducted during the bird's nesting season (Makepeace and Aubry, unpubl. data in COSEWIC 2009, p. 31).
In addition to the petitioner's discussion of the impacts of forestry practices on breeding range habitat, information in our files indicates an ongoing loss and degradation of important forested wintering habitat through logging, subsistence farming, and human-caused fires (Rimmer
The petitioner did not present information suggesting that overutilization is affecting Bicknell's thrush populations.
One reference in our files indicates that 3 of 108 Vermont nests monitored during the period of 1992 to 2000 were abandoned and that abandonment may be caused by researcher disturbance (Rimmer
The petitioner asserts that disease (e.g., avian malaria) could have a substantial effect on the population viability of the Bicknell's thrush (Petition, p. 40).
The petitioner states that climate change may increase predation of the Bicknell's thrush by altering environmental conditions currently limiting the distribution of predators, and allowing “novel predators” to access the bird's habitat (Petition, pp. 39-40). The petitioner also states that the red squirrel (
The petitioner asserts that disease (e.g., avian malaria) could have a substantial effect on the population viability of the Bicknell's thrush (Petition, p. 40). While the petitioner provides information regarding the presence of avian malaria in New England and some bird species, the petitioner acknowledges that “bird populations have largely adapted to malarial parasites” and provides no information indicating that avian malaria or other diseases may be a threat to the Bicknell's thrush. In addition, we are unaware of any information that may substantiate this speculation. Therefore, the information presented in the petition and readily available in our files does not indicate that disease may be a threat to the Bicknell's thrush. However, disease impacts to the Bicknell's thrush will be further investigated as part of our 12-month status review.
Documented predation of adult Bicknell's thrush is limited to only a few predators. Of 8 depredation events on radio-tagged breeding adults, 7 were attributed to the sharp-shinned hawk (
The sharp-shinned hawk, American marten (
Since Wallace's observations, additional evidence demonstrates a somewhat loose 2-year (biennial) cycle in nest survival rates on Stratton Mountain and Mount Mansfield, Vermont (Rimmer
The petitioner asserts, with no supporting information, climate change may alter this biennial cycle of balsam fir cone production and red squirrel abundance (Petition, p. 40). Information in our files suggests balsam fir cone production has been linked to climatic variables (Messaoud
In addition to biennial cycle disruptions, the petition also asserts that climate change will allow “novel” predators (i.e., previously unknown), such as the raccoon (
The petition states that existing Federal, state, or international regulatory mechanisms protecting the Bicknell's thrush or its habitat are inadequate. More specifically, the petition states that existing international and U.S. regulatory mechanisms to reduce global greenhouse gas emissions are inadequate to safeguard the Bicknell's thrush against extinction resulting from climate change (Petition, p. 40).
The petitioner cites national and international regulatory mechanisms that are generic to migratory birds, as well as some that are specific to the Bicknell's thrush (Petition, pp. 41-42, 44). For example, the petitioner asserts that existing Federal regulatory mechanisms, including the Migratory Bird Treaty Act of 1918, as amended (MBTA), do not protect habitat for migratory birds, including the Bicknell's thrush. In the United States, under the MBTA, it is unlawful to take, capture, kill, or possess migratory birds, their nests, eggs, and young. The MBTA was not crafted to specifically protect habitat, although it may provide indirect benefits to migratory bird habitat, and, therefore, cannot be considered an inadequate existing regulatory mechanism for habitat protection. In addition, the petitioner further states that the Migratory Bird Conservation Act, the Neotropical Migratory Bird Conservation Act, and the identification of birds of management concern through the Birds of Conservation Concern apply to the Bicknell's thrush. These various actions are intended to foster proactive conservation, are nonregulatory (Petition, pp. 41-42; USFWS 2008, p. 30) and, therefore, cannot be considered inadequate existing regulatory mechanisms.
As for international regulatory mechanisms, the Bicknell's thrush is protected in Canada under the Migratory Birds Convention Act of 1994. In addition, the Committee on the Status of Endangered Wildlife in Canada designated the bird as threatened in Quebec, New Brunswick, and Nova Scotia (COSEWIC 2009, pp. iii, vi). The COSEWIC is a panel of species experts who evaluate the conservation status of Canadian species according to a set of criteria and recommend which species should be protected under Canada's Species at Risk Act (SARA). While COSEWIC has evaluated the Bicknell's thrush as a threatened species, the Minister of Environment has not yet added the species to SARA's Schedule 1 (threatened and endangered wildlife). Bicknell's thrush is considered a SARA Schedule 3 Species of Concern, which means the Schedule 1 protection and conservation provisions of SARA do not apply. With regard to the Dominican Republic and Haiti, the petitioner asserts that current protections are minimal and confined to the designation of several national parks that provide limited protection to a small portion of the bird's wintering habitat where habitat degradation due to human activities continues (Petition, pp. 55-56). Although not specifically stated by the petition under Factor D, the petition asserts in Factor E that wintering habitat in Cuba is inadequately managed (Petition, p. 56). We have no readily available information in our files that addresses the regulatory mechanisms that may or may not be protective of Bicknell's thrush in Canada or the Greater Antilles. We will further investigate Canadian and Greater Antilles regulations during our 12-month status review.
The petitioner provides no information regarding any action taken by a state or provincial entity that specifically protects the Bicknell's thrush under existing authorities for threatened or endangered wildlife, but does provide information on how forested habitat, which may be occupied by Bicknell's thrush, is managed in each state (Petition, pp. 47-54). Information in our files indicates that the Bicknell's thrush has been identified as a species of special concern in Maine, New York, Vermont, and New Hampshire (IBTCG 2010, p. 7). Species afforded this designation receive no legal status under existing state endangered species statutes. Similarly, the species is considered “vulnerable” in Nova Scotia and “may be at risk” in New Brunswick and Quebec, but these designations provide little to no additional protection (IBTCG 2010, p. 7; Petition, p. 44).
In the Puerto Rican portion of its wintering range, the Bicknell's thrush is protected under the MBTA, as described previously. The petitioner provides no information, and we are not aware of any information, regarding the legal status of Bicknell's thrush in the Dominican Republic, Haiti, Jamaica, or Cuba. In addition, we have no readily available information, either from the petition or in our files, on any existing regulatory mechanisms that would provide specific protections for the Bicknell's thrush in the national parks of Hispaniola.
The petitioner asserts that amendments to the Clean Air Act in 1990 have strengthened regulations to control the emission of airborne pollutants, but it has not been effective in alleviating the harmful effects of mercury, acid deposition, ground-level ozone, or nitrogen nutrification in Bicknell's thrush habitat (Petition, p. 42). Specifically, the petitioner asserts that EPA has delayed regulating mercury emissions as a result of legal actions against the agency, while regulations to control acid deposition have not been ambitious enough to address the problem (Petition, p. 43). Furthermore, the petitioner asserts that, while the 1990 Clean Air Act amendments have helped reduce nitrogen dioxide emissions that lead to ozone pollution, greater reductions are needed to prevent ongoing ozone pollution that the petitioner states is damaging the habitat of Bicknell's thrush (Petition, p. 43). The petitioner also states that an international agreement to regulate mercury pollution is being developed, but has not yet been implemented (Petition, p. 44).
As discussed above in Factor A, information presented in the petition and readily available in our files does not indicate that ground-level ozone may be threat to the Bicknell's thrush. Therefore, ground-level ozone may be adequately regulated.
Finally, the petitioner states that the effect of climate change on the montane habitat of the Bicknell's thrush is the most serious threat to its continued existence, and that existing international and U. S. regulatory mechanisms to reduce global greenhouse gas emissions are clearly inadequate (Petition, pp. 40, 44). The petitioner argues that national and international reductions in emissions are urgently needed to safeguard the Bicknell's thrush against extinction resulting from climate change.
The Clean Air Act of 1970 (42 U.S.C. 7401
As of August 24, 2010, the time of the petition's receipt, it was not known what regulatory mechanisms would be developed in the future as an outgrowth of EPA's finding that the Clean Air Act is insufficient to regulate greenhouse gases or how effective they would be in addressing climate change. Climate change regulations, and to what extent they adequately address threats to Bicknell's thrush and its habitat, will be investigated in our 12-month status review.
The petitioner asserts that mercury exposure and accumulation, decreased dietary calcium due to acid deposition, direct mortality caused by climate change, increased interspecific competition caused by climate change, and disturbance by recreationists are all threats to the Bicknell's thrush.
The petitioner discusses information regarding the atmospheric deposition of mercury, a potent neurotoxin, and the process by which it accumulates in the Bicknell's thrush (Petition, pp. 56-58). According to the petition, mercury originating mostly from coal-fired power plants accumulates in wildlife and is influencing some wildlife populations. The petitioner recognizes documentation of methylmercury burdens, the toxic form of mercury, in terrestrial montane songbirds is a recent discovery (Petition, p. 57). Among four evaluated songbirds, the Bicknell's thrush had the highest blood mercury concentrations, with birds in the southern portion of the species' range having higher loads than in northern areas. In addition, atmospheric deposition of mercury is two to five times higher in montane areas than in adjacent low-elevation areas (Petition, p. 57).
Elevated levels of toxic mercury have been found in Bicknell's thrush tissue and may be cause for concern (IBTCG 2010, p. 13). Mercury in the northeastern United States and eastern Canada is derived from local, regional, and global emissions; however, most estimates show that approximately 60 percent of mercury in this area is derived from sources located within the United States (Evers 2005, p. 5). Mercury toxicity is largely dependent upon whether it is converted to the bioavailable toxic form known as methylmercury, as well as an organism's trophic position (e.g., its level in the food chain). Trophic position influences mercury exposure due to the processes of bioaccumulation (increase in the body over time) and biomagnification (increase in concentration from one trophic level to another) (Evers 2005, p. 6). Generally, a species that is higher in the food chain has a greater exposure to mercury if its prey has mercury in its body when consumed as food.
Mercury deposition is highest on high mountain summits in comparison to other landscape positions primarily as a result of the summits' greater exposure to cloud-based mercury sources (Miller
The specific pathway by which the Bicknell's thrush consumes mercury and the effects that the burden has on the birds is unknown (Rimmer
The petitioner asserts that acid deposition impacts the habitat of the Bicknell's thrush by reducing calcium availability that has been shown to influence survival of red spruce. The petitioner also asserts that acid deposition can directly alter calcium availability for breeding songbirds that may impact eggshell production (DeHayes
The petitioner asserts that increased storm frequency and intensity have the potential to increase mortality in the Bicknell's thrush (Petition, p. 58). Information in our files suggest most Bicknell's thrush nesting failures are attributed to predation, but climate change scenarios predict increases in the frequency of wind and precipitation that may result in additional nest failures (Hayhoe
The petitioner asserts that climate change will increase encroachment of the Bicknell's thrush by competitors that were formerly restricted to lower elevations (Petition, p. 58). The petition acknowledges that the Swainson's thrush (
The Bicknell's thrush is considered to be better adapted to colder environments than is the Swainson's thrush (Holmes and Sawyer 1975 in Nixon
The petitioner asserts that recreational use (hiking and biking) in Bicknell's thrush habitat poses a threat to the species (Petition, p. 59; IBTCG 2010, p. 12). The petitioner states that the backcountry areas of the White Mountain National Forest in New Hampshire, including the high-elevation spruce-fir habitat occupied by the Bicknell's thrush, received about 31,400 visitors in 2005 (Petition, p. 59; King
The petitioner cites Rimmer
As previously described above in Factor A and as indicated in the petition, construction of telecommunications structures (stationary structures) and wind turbines (moving structures) on exposed high-elevation areas (Petition, p. 37) can directly impact Bicknell's thrush habitat (Rimmer
Information in our files suggests that individual Bicknell's thrush may be disturbed by wind towers and exhibit avoidance of wind turbine areas in response to noise and movement from the spinning blades (MacFarland
On the basis of our determination under section 4(b)(3)(A) of the Act, we determine that the petition presents substantial scientific or commercial information indicating that listing the Bicknell's thrush throughout its entire range may be warranted. This finding is based on information provided under factors A, D, and E. We determine that the information provided under factors B and C is not substantial.
Because the petition presents substantial information indicating that listing the Bicknell's thrush may be warranted, we will be initiating a status review to determine whether listing the Bicknell's thrush under the Act is warranted.
The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the NEFO.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Office of the Under Secretary, Research, Education, and Economics, USDA.
Notice of meeting.
The notice announced the USDA's August 27-28 meeting of the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21). The notice was published in the
Michael Schechtman, 202-720-3817.
In the
On August 27, 2012, if time permits, reasonable provision will be made for oral presentations of no more than five minutes each in duration. Comments may also be provided by Email or by fax to Dr. Schechtman at the addresses indicated above by no later than August 22, 2012. Please include your full name, address, and relevant affiliation in any comments submitted.
Forest Service, USDA.
Notice of meeting.
The Nevada and Placer County Resource Advisory Committee will meet in Truckee and Nevada City, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meetings are open to the public. The purposes of the meetings are to review and recommend projects authorized under title II of the Act.
The meetings will be held September 4, 2012 beginning at 9 a.m. in Truckee and on September 6, 2012 in Nevada City beginning at 9 a.m.
The meeting will be held at the Forest Service Truckee District Ranger Station, 10811 Stockrest Springs Rd, Truckee, CA, 96161 and at the Tahoe National Forest Headquarters, 631 Coyote St., Nevada City, CA 95959.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Tahoe National Forest Headquarters, Nevada City. Please call ahead to 530-265-4531 to facilitate entry into the building to view comments.
Ann Westling, Public Affairs Officer, Tahoe National Forest, 530-478-6205,
The following business will be conducted: welcome and introductions, project proposal review, public comments, and vote on project proposals. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by 8/24/2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Ann Westling, 631 Coyote Street, Nevada City, CA, 95959. A summary of the meeting will be posted at
Forest Service, USDA.
Notice of meeting.
The Sierra County Resource Advisory Committee will meet in Sierraville and/or Downieville, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. The meetings are open to the public. The purposes of the meeting(s) are to review and recommend projects authorized under title II of the Act.
The meetings will be held September 7, 2012 beginning at 9 a.m. in Sierraville and on September 10, 2012 in Downieville beginning at 9 a.m. (if needed as a back-up meeting in case
The meetings will be held at the Forest Service Sierraville District Ranger Station, 317 S. Lincoln St. (Hwy 89), Sierraville, CA, 96126 and/or at the Downieville Community Hall, 327 Main St, Downieville, CA, 95936.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Tahoe National Forest Headquarters, Nevada City. Please call ahead to 530-265-4531 to facilitate entry into the building to view comments.
Ann Westling, Public Affairs Officer, Tahoe National Forest, 530-478-6205,
The following business will be conducted: Welcome and introductions, project proposal review, public comments, and vote on project proposals. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by 8/24/2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Ann Westling, 631 Coyote Street, Nevada City, CA, 95959. A summary of the meeting will be posted at
Forest Service, USDA.
Notice of meeting.
The Northern New Mexico Resource Advisory Committee (NNM RAC) will meet in Albuquerque, New Mexico. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects authorized under title II of the Act and funds to be allocated and to discuss acquisition management instruments for implementation of title II projects, review monitoring report, review and approve administrative costs, provide opportunity for proponents to present proposals (5 minutes each), provide NNM RAC members opportunity to ask questions about proposals (3 minutes each), review proposal recommendation process, review and rank project proposal by Category Groups, provide recommendations for funding to Designated Federal Officials and provide for public comment.
The meeting will be held on September 10, 2012 beginning at 10 a.m. and ending at 5 p.m. and on September 11, 2012 beginning at 8 a.m. and ending at 5 p.m.
The meeting will be held at the Cibola National Forest Supervisor's Office conference room located at 2113 Osuna Rd. NE., Albuquerque, NM 87113. Written comments may be submitted as described under
Ruben Montes, RAC Coordinator, Santa Fe. National Forest, 575-438-5356,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed in
The following business will be conducted: review the status of Title II and funds to be allocated, discuss acquisition management instruments for implementation of Title II projects, review monitoring report, review and approve administrative costs, provide opportunity for proponents to present proposals (5 minutes each), provide NNM RAC members an opportunity to ask questions about proposals (3 minutes each), review the proposal recommendation process, review and rank project proposals by Category Groups, provide recommendations for funding to the Designated Federal Official and provide for public comment. Further information can be found at
Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 31, 2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to 11 Forest Lane, Santa Fe, New Mexico 87508, or by email to
Forest Service, USDA.
Notice of meeting.
The North Mt. Baker-Snoqualmie (MBS) Resource Advisory Committee (RAC) will meet in Sedro Woolley, Washington on August 27, 2012. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and rank 2013 Title II RAC proposals.
The meeting will be held on Monday, August 27, 2012 from 8 a.m. to 4 p.m.
The meeting will be held at the Mt. Baker Ranger District office located at 810 State Route 20, Sedro-Woolley, Washington, 98284. Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Mt. Baker Ranger District (below). Please call ahead to (360) 854-2601 to facilitate entry into the building to view comments.
Jon Vanderheyden, District Ranger, Mt. Baker Ranger District, phone (360) 854-2601, email
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Written comments and requests for time for oral comments must be sent to Mt. Baker Ranger District, 810 State Route 20, Sedro-Woolley, Washington, 98284.
More information will be posted on the Mt. Baker-Snoqualmie National Forest Web site at:
Forest Service, USDA.
Notice of meeting.
The South Central Idaho Resource Advisory Committee will meet in Jerome, Idaho. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review project applications for funding.
The meeting will be held September 5, 2012, 9 a.m.
The meeting will be held at the Idaho Department of Fish and Game, 319 S 417 E, Jerome, Idaho 83338. Written comments may be submitted as described under
Julie Thomas, Designated Federal Official, Sawtooth National Forest, 208-737-3200, and
The following business will be conducted: Review project applications for funding. The meeting agenda may be previewed at the following Web site:
Forest Service, USDA.
Notice of meeting.
The Alpine County Resource Adivisory Committee will meet in Markleeville, CA. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects authorized under title II of the Act.
The meeting will be held September 10th 2012 at 6 p.m.
The meeting will be held at the Alpine Early Learning Center, 100 Foothill Road, Markleeville, CA.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Carson Ranger District, 1536 S. Carson St, Carson City, NV. Please call ahead to 775-884-8140 to facilitate entry into the building to view comments.
Daniel Morris, RAC Coordinator, Carson Ranger District, 775-884-8140,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The following business will be conducted: (1) Review and recommend funding allocation for proposed projects for 2012 funding (2) Public Comment. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to 1536 S. Carson St., Carson City, NV. 89701, or by email to
Rural Business-Cooperative Service, USDA.
Notice of Funding Availability (NOFA).
USDA announces the availability of grants through the Value-Added Producer Grant (VAPG) program for Fiscal Year 2012. Approximately $14 million in competitive grant funds for FY 2012 is available to help agricultural producers enter into value-added activities. At the discretion of the Secretary, additional funds may be made available to qualified ranking applications that respond to this announcement from prior year carry-over funds.
Awards may be made for either economic planning or working capital activities related to the processing and/or marketing of valued-added agricultural products. The maximum grant amount for a planning grant is $100,000 and the maximum grant amount for a working capital grant is $300,000.
There is a matching funds requirement of at least $1 for every $1 in grant funds provided by the Agency (matching funds plus grant funds must equal proposed total project costs). Matching funds may be in the form of cash or eligible in-kind contributions and may be used only for eligible project purposes. Matching funds must be available at time of application and must be certified and verified as described in 7 CFR 4284.931(b)(3) and (4). See 7 CFR 4284.923 and 7 CFR 4284.924 for examples of eligible and ineligible uses of matching funds.
Ten percent of available funds are reserved to fund applications submitted by Beginning Farmers or Ranchers and Socially Disadvantaged Farmers or Ranchers, and an additional 10 percent of available funds are reserved to fund applications from farmers or ranchers that propose development of Mid-Tier Value Chain projects (both collectively referred to as “reserved funds”). See 7 CFR 4284.925 and 7 U.S.C. 1632(a).
You must submit your application by October 15, 2012 or it will not be considered for funding announced in this Notice. Paper applications must be postmarked and mailed, shipped or sent overnight by this date. Electronic applications are permitted via www.grants.gov only, and must be received before midnight on this date.
You should contact your USDA Rural Development State Office if you have questions about eligibility or submission requirements. You are encouraged to contact your State Office well in advance of the application deadline to discuss your project and to ask any questions about the application process. You may request technical assistance from your State Office up to 14 days prior to the application deadline. Application materials are available at
If you want to submit an electronic application, follow the instructions for the VAPG funding announcement on
Office of the Deputy Administrator, Cooperative Programs, Rural Business-Cooperative Service, United States Department of Agriculture, 1400 Independence Avenue SW., MS-3250, Room 4016-South, Washington, DC 20250-3250, (202) 720-8460.
In accordance with the Paperwork Reduction Act, the paperwork burden associated with this Notice has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0039.
The primary objective of this grant program is to help Independent Producers of agricultural commodities, Agriculture Producer Groups, Farmer and Rancher Cooperatives, and Majority-Controlled Producer-Based Business Ventures enter into value-added activities related to the processing and/or marketing of bio-based value-added agricultural products. Grants will be awarded competitively for either planning or working capital projects directly related to the processing and/or marketing of value-added products. Generating new products, creating and expanding marketing opportunities, and increasing producer income are the end goals. Applications that support aspects of regional strategic planning, cooperative development, sustainable farming, and local and regional food systems are encouraged. Proposals must demonstrate economic viability and sustainability in order to compete for funding.
As part of this funding initiative, funding priority will be available to Beginning Farmers and Ranchers, Socially-Disadvantaged Farmers and Ranchers, Operators of Small and Medium-Sized Farms and Ranches that are structured as a Family Farm, Farmer or Rancher Cooperatives, and projects proposing to develop a Mid-Tier Value Chain. See 7 CFR 4284.922(c) for Reserved Funding and 7 CFR 4284.922(d) for Priority Point categories and requirements.
The VAPG Program is authorized under section 231 of the Agriculture Risk Protection Act of 2000 (Pub. L. 106-224), as amended by section 6202 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246) (see 7 U.S.C. 1632a). Applicants must adhere to the program requirements contained in the program regulation, 7 CFR 4284, subpart J, which is incorporated by reference in this Notice.
The terms you need to understand are defined in 7 CFR 4284.902. In addition, there has been some confusion on the Agency's meaning of the terms “Harvester,” and “Steering Committee,” because these terms are only referenced as part of the Independent Producer definition and are not specifically defined in the regulation used for the program. Therefore, these terms are defined below and should be understood as follows.
Finally, in support of the
You must be an Independent Producer, Agricultural Producer Group, Farmer or Rancher Cooperative, or a Majority Controlled Produced-Based Business to apply to this program; and you must meet all related requirements for Emerging Market (as applicable), Citizenship, Legal Authority and Responsibility, Multiple Grants and Active Grants. In addition, you must meet Departmental requirements related to debarment, suspension and exclusion from participation in Federal assistance programs, as well as requirements related to outstanding Federal income taxes, judgments and delinquencies. For detailed requirements, see 7 CFR 4284.920 and 7 CFR 4284.921.
As a special emphasis, Rural Development encourages applications from Federally Recognized Tribal Groups and corporations and subdivisions of Tribal Groups undertaking or planning to undertake eligible value-added projects. For further tribal eligibility questions, please contact your local Rural Development office.
As part of applicant eligibility, it is important to clarify that all four applicant types must meet the Independent Producer and Agricultural Producer definition requirements in 7 CFR 4284.902, including, but not limited to, production and ownership of the majority of the raw agricultural commodity that will be transformed into the proposed value-added product for the project. All applicants must maintain ownership of the raw agricultural commodity through the production and marketing of the value-added product, with one partial exception for Mid-Tier Value Chain projects noted in its definition in 7 CFR 4284.902. Businesses that contract out the production of an agricultural commodity are not considered Independent Producers, and businesses that produce the agricultural commodity under contract for another business and do not own the raw commodity or value-added product produced are not considered Independent Producers.
Finally, all applicants for working capital funds must document the quantity of the agricultural commodity that will be used for the value-added product, expressed in an appropriate unit of measure (acres, pounds, bushels, etc.) to demonstrate the scale of the applicant's project. This quantification must include an estimated total quantity of the agricultural commodity needed for the project, the quantity that will be provided (produced and owned) by the agricultural producers of the applicant organization, and the quantity that will be purchased or donated from third-party sources. The application must demonstrate that the amount of applicant commodity contributed to the project is the majority of the total agricultural commodity needed for the value-added project.
Your project must meet (1) Product Eligibility requirements related to the definition of Value-Added Agricultural Product, including value-added methodologies, expansion of customer base for the agricultural commodity, and increased revenues returning to the applicant's producers of the agricultural commodity as a result of the project; (2) Purpose Eligibility requirements related to maximum grant amounts, certification and verification of matching funds, eligible and ineligible uses of grant and matching funds for planning or working capital activities, including requirements related to conflicts of interest and ineligible expenses in excess of 10 percent of total project costs, a substantive work plan and budget, independent feasibility study and/or business plan requirements for working capital projects (subject to Agency concurrence of financial feasibility, as defined in 7 CFR 4284.902), including demonstration of readiness to implement the working capital activities, and identification of the number of jobs expected to be created or saved as a result of the project; (3) Reserved Funds Eligibility requirements if you choose to compete for Reserved Funds as a Beginning Farmer or Rancher, a Socially Disadvantaged Farmer or Rancher, or if you propose to develop a Mid-Tier Value Chain; and (4) Priority Status Eligibility requirements if you request priority points in the competition for a project that contributes to increasing opportunities for Beginning Farmers or Ranchers, Socially Disadvantaged Farmers or Ranchers, or if you are an Operator of a Small or Medium-sized farm or ranch that is structured as a Family Farm, propose a Mid-Tier Value Chain project, or are a Farmer or Rancher Cooperative. For detailed requirements, see 7 CFR 4284.922, 7 CFR 4284.923 and 7 CFR 4284.924.
If you are applying for a working capital grant that requires a project-specific independent feasibility study and/or business plan, you must submit those documents with your application. In addition, you must summarize relevant results of the feasibility study and business plan in response to the scoring criteria, as applicable, because reviewers will not receive copies of your feasibility study or business plan when scoring your application. Based on the information presented in the application, including a feasibility study and/or business plan where required, the applicant must demonstrate that the project is financially feasible and can achieve the income, credit and cash flows to sustain the venture over the long term. Applications with inadequate information or projects deemed not financially feasible by the Agency will be deemed not eligible to compete for grant funding. See 7 CFR 4284.922(b)(6).
If you request Reserve Funds, you must document eligibility for the requirements stated in 7 CFR 4284.922(c). Ten percent of available funds are reserved to fund applications submitted by Beginning Farmers or Ranchers and Socially Disadvantaged Farmers or Ranchers, as defined in 7 CFR 4284.902. An additional 10 percent of available funds are reserved to fund Mid-Tier Value Chain projects. If your application is eligible, but does not receive Reserve Funding, it will automatically be considered for general funds in that same fiscal year, as funding levels permit and in accord with project ranking. As previously noted, Harvester operations are not considered a Farm or Ranch and are not eligible for Reserve Funds for a Beginning Farmer or Rancher or a Socially Disadvantaged Farmer or Rancher; however, Harvester operations may request Reserve Funds for a qualifying Mid-Tier Value Chain project, as applicable.
Your project timeframe or grant period can be a maximum of 36 months in length from the date of award. Your proposed grant period should begin no earlier than the anticipated award announcement date herein, January 18, 2013, and should end no later than 36 months following that date. If you receive an award, your grant period will be revised to begin on the actual date of award—the date the grant agreement is executed by the Agency—and your grant
Applications with ineligible expenses of more than 10 percent of total project costs will be ineligible to compete for funds. Eligible applications that are selected for award but contain ineligible expenses of 10 percent or less of total project costs must remove those ineligible expenses from the final project budget that is subject to approval by the Agency. See 7 CFR 4284.923 for examples of eligible planning and working capital use of funds, and see 7 CFR 4284.924 for examples of ineligible use of funds.
If your application is incomplete, it is ineligible to compete for funds.
(i) Please note that grant applicants must obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number pursuant to 2 CFR 25.200(b). You must provide your DUNS number in the application, or it will be ineligible for funding. A DUNS number can be obtained at no cost via a toll-free request line at (866) 705-5711 or online at
(ii) Please note also that pursuant to 2 CFR 25.200(b) grant applicants must register in the Central Contractor Registration (CCR) database, or its successor database known as the System for Award Management (SAM), prior to submitting an application; unless you are exempt under 2 CFR 25.110. Grant applicants must maintain an active CCR/SAM registration with current information at all times during which you have an active Federal award or an application under consideration by the Agency. An active CCR/SAM Registration Cage Code and expiration date must be included in your application or it will not be eligible for funding.
To register in the database, visit
(iii) Similarly, all recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation in accordance with 2 CFR part 170. So long as an entity applicant does not have exception under 2 CFR 170.110(b), the applicant must have the necessary processes and systems in place to comply with the reporting requirements should the applicant receive funding. See 2 CFR 170.200(b).
The application guide, government forms, regulation, and official program notifications for this funding opportunity can be obtained online at
You may submit your application in paper form or electronically through Grants.gov. Your application must contain all required information.
To submit an application electronically, you must follow the instructions for this funding announcement at
If you want to submit a paper application, send it to the State Office located in the State where your project will primarily take place. You can find State Office Contact information at
Your application must contain all of the required forms and proposal elements described in 7 CFR 4284.931, unless otherwise clarified in this notice. Specifically, your application must include (1) the required forms as described in 7 CFR 4284.931(a), except (i) you do not need to submit Form RD 1940-20, “Request for Environmental Information,” because planning and working capital requests in this program are generally excluded from the environmental review process, and (ii) corporate applicants must also complete Form AD-3030, “Representations Regarding Felony Conviction and Tax Delinquent Status for Corporate Applicants”; and (2) the required proposal elements as described in 7 CFR 4284.931(b). Further clarification of application requirements is as follows:
In addition, you must include a one-page Executive Summary containing the following information: legal name of applicant entity, application type (planning or working capital), applicant type, amount of grant request, a summary of your project, whether you are submitting a simplified application, and whether you are competing for reserve funds.
Further, certifications for the following, among others specified elsewhere, must be included in the application:
1. Awards made under this Notice are subject to the provisions contained in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012, Public Law 112-55, Division A sections 738 and 739 regarding corporate felony convictions and corporate federal tax delinquencies. To comply with these provisions, all applicants must complete paragraph (A) of this representation, and all corporate applicants also must complete paragraphs (B) and (C) of this representation:
(A) Applicant, [insert applicant name], __ is __ is not (check one) an entity that has
(B) Applicant, [insert applicant name], __ has __ has not (check one) been convicted of a felony criminal violation under Federal or state law in the 24 months preceding the date of application. Applicant __ has __ has not (check one) had any officer or agent of the Applicant convicted of a felony criminal violation for actions taken on behalf of the Applicant under Federal or State law in the 24 months preceding the date of the signature on the application.
(C) Applicant, [insert applicant name], __ has __ does not have (check one) any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.
2. You must certify that there are no current outstanding Federal judgments against your property and that you will not use grant funds to pay for any judgment obtained by the United States. To satisfy this certification requirement, you should include this statement in your application: “[INSERT NAME OF APPLICANT] certifies that the United States has not obtained an unsatisfied judgment against its property and will not use grant funds to pay any judgments obtained by the United States.” A separate signature is not required.
If you are requesting less than $50,000 in working capital grant funds, you may submit a simplified application. See 7 CFR 4284.932. You are not required to provide an independent feasibility study or business plan. You are required to provide information to show the increases in customer base and revenues expected to be derived from the project that will benefit the producer applicants supplying the majority of the agricultural commodity for the project. References to information from third-party sources that support your conclusions will enhance your application and improve scoring. Also see 7 CFR 4284.922(b)(6)(ii).
If you are an Independent Producer applicant type applying for a working capital grant of $50,000 or more, and your project is for market expansion of an existing value-added product(s) that you have successfully produced and marketed for at least 2 years prior to the submission of the application, and is a value-added product that you have produced from more than 50 percent of your own agricultural commodity, you must submit a business or marketing plan for the project, but are not required to submit a feasibility study. Your application must contain adequate information to demonstrate the increases in customer base and revenues expected to be derived from the project that will benefit the applicant producers supplying the majority of the agricultural commodity for the project. References to information from third-party sources that support your conclusions will enhance your application and improve scoring. See 7 CFR 4284.922(b)(6)(i).
Funding limitations and reservations found in the program regulation will apply. See 7 CFR 4284.925.
Grant funds may be used to pay up to 50 percent of the total eligible project costs, subject to the limitations established for maximum total grant amount. Grant and matching funds may only be used for eligible purposes (see 7 CFR 4284.923) and may not be used for ineligible purposes (see 7 CFR 4284.924). If Program Income is earned during the grant period as a result of the project activities, it is subject to the requirements in 7 CFR 3019.24, and must be managed and reported accordingly.
The aggregate amount of awards to Majority Controlled Producer-Based Businesses in response to this announcement shall not exceed 10 percent of the total funds obligated for the program during the fiscal year.
In response to this announcement, 10 percent of total funding available will be used to fund projects that benefit Beginning Farmers or Ranchers, or Socially-Disadvantaged Farmers or Ranchers. In addition, 10 percent of total funding available will be used to fund projects that propose development of Mid-Tier Value Chains as part of a Local or Regional Supply Chain Network. See related definitions in 7 CFR 4284.902.
For this announcement, any Reserved Funds that have not been obligated by June 30, 2012, will be available to the Secretary to make VAPG grants from the fund categories addressed at 7 CFR 4284.922 (c). After awards have been selected from each Reserved Fund, any excess unobligated funds will revert to general funds.
Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs,” applies to this program. This EO requires that Federal agencies provide opportunities for consultation on proposed assistance with State and local governments that have chosen to participate in that process. Those states have established a Single Point of Contact (SPOC) to facilitate this consultation. For a list of states that maintain an SPOC, please see the White House Web site:
Applications will be reviewed and processed as described at 7 CFR 4284.940.
The Agency will conduct a review of your application to determine if it is complete and eligible. If the Agency determines that your application is ineligible at any time, then you will be notified in writing as to the reasons it was determined ineligible and you will be informed of any review or appeal rights.
If, at any time after you have submitted your application, you decide that you no longer want to request grant funding, you must notify the Agency in writing. Upon receipt of your notification, the Agency will rescind the award or withdraw the application, as applicable.
The Agency will only score applications in which the applicant and project are eligible, which are complete and sufficiently responsive to program requirements, and in which the Agency agrees on the likelihood of financial feasibility for working capital requests. We will score your application according to the procedures and criteria specified in 7 CFR 4284.942, and with tiered scoring thresholds as specified below.
For each criterion, you must show how the project has merit and why it is likely to be successful. If you do not address all parts of the criterion, or do
For both planning and working capital grants, you should discuss the technological feasibility of the project, as well as the operational efficiency, profitability, and overall economic sustainability resulting from the project. In addition, demonstrate the potential for expanding the customer base for the agricultural commodity or value-added product, and the expected increase in revenue returns to the producer-owners providing the majority of the raw agricultural commodity to the project. You should reference third-party information that specifically supports your value-added project; discuss the value-added process you are proposing; potential markets and distribution channels; the value to be added to the raw commodity through the value-added process; cost and availability of inputs, your experience in marketing the proposed or similar product; business financial statements; and any other relevant information that supports the viability of your project. Working capital applicants should demonstrate these concepts that will result from the project. Planning grant applicants should describe the expected results, and the reasons supporting those expectations.
Points will be awarded as follows:
(i) 0 points will be awarded if you do not substantively address this criterion.
(ii) 10 points will be awarded if the criterion is poorly addressed.
(iii) 20 points will be awarded if the criterion is partially addressed.
(iv) 30 points will be awarded if you clearly articulate the rationale for the project and show a high likelihood of success based on technological feasibility and economic sustainability.
You should identify and describe the qualifications of each person responsible for leading or managing the total project, as well as the people responsible for actually conducting the individual tasks in the work plan. You should discuss the credentials, education, capabilities, experience, availability and commitment of each person working on the project. If staff or consultants have not been selected at the time of application, you should describe the qualifications required for the positions to be filled. Points will be awarded as follows:
(i) 0 points will be awarded if you do not substantively address this criterion.
(ii) 10 points will be awarded if at least one of the identified staff or consultants demonstrates 5 or more years of relevant experience; or, if no project personnel have been identified but necessary qualifications for the positions to be filled are clearly described.
(iii) 20 points will be awarded if all of the identified staff demonstrates relevant qualifications and experience.
Your application must show that the project has strong direct financial, technical and logistical support from agricultural producers, end-users, and other third party contributors who are necessary for the successful completion of the project. All cash or in-kind contributions from producers, end users, or other contributors should be discussed. End-user commitments may include contracts or letters of intent or interest in purchasing the value-added product. Third-party commitments may include evidence of critical partnerships, logistical, or technical support necessary for the project to succeed. Points will be awarded as follows:
(i) 0 points will be awarded if you do not show that you have quality commitments or support from producers, end-users or other critical third party contributors.
(ii) 5 points will be awarded if you partially show real, high quality direct support or commitments from at least one producer, end user, or other third party contributor.
(iii) 10 points will be awarded if you show real, high quality direct support or commitments from multiple producers, end-users and critical third-party contributors.
You must submit a comprehensive work plan and budget (for full details, see 7 CFR 4284.922(b)(5)). Your work plan must provide specific and detailed descriptions of the tasks and the key project personnel that will accomplish the project's goals. The budget must present a detailed breakdown of all estimated costs of project activities and allocate those costs among the listed tasks. You must show the source and use of both grant and matching funds for all tasks. Matching funds must be spent at a rate equal to, or in advance of, grant funds. An eligible start and end date for the project and for individual project tasks must be clearly shown and may not exceed Agency specified timeframes for the grant period. Working Capital applications must include an estimate of Program Income expected to be earned during the grant period (see 7 CFR 3019.24).
(i) 0 points will be awarded if the work plan and budget do not substantively address this criterion.
(ii) 10 points will be awarded if the work plan and budget only partially address this criterion.
(iii) 20 points will be awarded if a detailed, comprehensive work plan and budget is provided.
Priority points may be awarded in both the general funds competition, as well as the Reserve Funds competitions. You may request priority points if you meet the requirements for one of the following categories and provide the documentation described in 7 CFR 4284.922(d), as applicable:
Beginning Farmer or Rancher, or
Socially Disadvantaged Farmer or Rancher, or
Operator of a Small or Medium-sized farm or ranch that is structured as a Family Farm, or
Farmer or Rancher Cooperative, or
Mid-Tier Value Chain project.
It is recommended that you use the Agency application package when applying for priority points and refer to the documentation requirements specified in 7 CFR 4284.922(d). Harvester operations are not considered a Farm or Ranch and are not eligible for priority points for a Beginning Farmer or Rancher, a Socially Disadvantaged Farmer or Rancher, an Operator of a Small or Medium-sized farm or ranch that is structured as a Family Farm, or a Farmer or Rancher Cooperative; however, Harvester operations may request priority points for a qualifying
The Administrator of USDA Rural Development Business-Cooperative Service (RBS) may choose to award up to 10 points to an application to improve the geographic diversity of awardees in a fiscal year.
The Agency will select applications for award under this Notice in accordance with the provisions specified in 7 CFR 4284.950(a).
We will first review your application for eligibility and to determine if it is complete and sufficiently responsive to the requirements of the program to allow for an informed review (see 7 CFR 4284.940).
If your application is eligible and complete, it will be scored by two reviewers based on criteria specified in section V.B. of this Notice. One of these reviewers will be a Rural Development employee from your servicing State Office and the other reviewer will be a non-Federal, independent reviewer. The State Office may enlist the support of technical experts, qualified as described below and approved by the State Director, to assist the State Office scoring process. All reviewers must meet the following qualifications. Reviewers must have at least a bachelor's degree in one or more of the following fields: agri-business, business, economics, finance, or marketing. They must also have a minimum of 3 years of experience in an agriculture-related field (e.g. farming, marketing, consulting, university professor, research, officer for trade association, government employee for an agricultural program). If the reviewer does not have a degree in one of those fields, he/she must have at least 5 years of working experience in an agriculture-related field.
Both reviewers will score evaluation criteria 1 through 4 and the totals for each reviewer will be added together and averaged. The Rural Development reviewer will also assign priority points based on criterion 5 in section V.B. of this Notice. These will be added to the average score. The sum of these scores will be ranked high to low and this will comprise the initial ranking.
The Administrator of RBS may choose to award up to 10 Administrator priority points based on criterion 6 in section V.B. of this Notice. These points will be added to the cumulative score for a total possible score of 100.
A final ranking will be obtained based solely on the scores received for criteria 1 through 6. Applications for reserved funding will be funded in rank order until funds are depleted. Unfunded reserve category applications will be returned to the general funds category where applications will be funded in rank order until the funds are depleted. Funding for Majority Controlled Producer-Based Business Ventures (MAJ) is limited to 10 percent of total grant funds expected to be obligated as a result of this Notice. MAJ applications will be funded in rank order until the funding limitation has been reached. Grants to MAJ applicants from reserved funds will count against this funding limitation.
If your application is ranked, but not funded, it will not be carried forward into the next competition. We will notify you in writing if your application is not selected for funding and inform you of any appeal rights. You may submit an updated application for consideration during the next round of funding.
If your application is successful, you will receive notification regarding funding from the State Office where your application is submitted or where the project will primarily take place if you submit your application via Grants.gov. You must comply with all applicable statutes, regulations, and notice requirements before the grant award will be approved. See 7 CFR 4284.951. If your application is not successful, you will receive notification, including review, mediation procedures and appeal rights, by mail. See 7 CFR part 11.
A person may seek a review of an Agency decision or appeal to the National Appeals Division in accordance with 7 CFR part 11.
All recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation (see 2 CFR part 170). You will be required to have the necessary processes and systems in place to comply with the Transparency Act reporting requirements (see 2 CFR 170.200(b), unless you are exempt under 2 CFR 170.110(b)).
The provisions of 7 CFR 4284.905 applies to this Notice, which includes requiring applicants to be in compliance with other applicable Federal laws.
The provisions of 7 CFR 4284.960 applies to this Notice.
All grants awarded under this Notice shall be serviced in accordance with 7 CFR part 1951, subparts E and O as applicable, and the Departmental Regulations (7 CFR parts 3000-3099), with the exception that delegation of the post-award servicing of the program does not require the prior approval of the Administrator.
Any transfer of funds obligated under this Notice from an applicant to a different applicant must comply with the requirements specified in 7 CFR 4284.962.
The provisions of 7 CFR 4284.963 applies to this Notice.
The provisions of 7 CFR 4284.904 applies to this Notice.
Unless specifically stated otherwise in this Notice or in 7 CFR part 4284, subpart J, this Notice incorporates by reference the regulations of the Department of Agriculture's Office of Chief Financial Officer (or successor office) as codified in 7 CFR parts 3000 through 3099, including, but not necessarily limited to, 7 CFR parts 3015 through 3019, 7 CFR part 3021, 7 CFR part 3052, and 2 CFR parts 25, 170 and 417; and successor regulations to these parts.
This Notice incorporates by reference the cost principles found in 2 CFR part 230 and in 48 CFR 31.2.
All recipients under this Notice are subject to the requirements of 7 CFR part 1940, subpart G and any successor regulations. However, 7 CFR 1940.333, 7 CFR 1940.310(c)(1) and 7 CFR 1940.317(g)(2) generally exclude applications for both planning and working capital grants.
If you have questions about this Notice, please contact the State Office as identified in the
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. Not all prohibited bases apply to all programs. Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
To file a complaint of discrimination write to USDA, Director, Office of Adjudication and Compliance, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The California Signage Plan is an organized and systematic way to develop and install graphic signs along the California coastline and inland that interpret the natural and cultural resources of a particular location and its connection to the sanctuaries located within California. To date, a strategic approach to evaluating interpretive signs produced by the Office of National Marine Sanctuaries has not been developed; therefore, we do not know if the messages we are trying to convey to our audiences are effective. We are proposing to conduct an online and onsite survey of approximately 400 visitors to the locations where signs are currently installed. The questions outlined in the survey examine the public's use of the signs, understanding of the signs' content, understanding and awareness of protected areas/zones and how those messages are portrayed in regulatory signs, demographics of the target audience, interest in alternate sources of interpretive content, perception of the National Marine Sanctuaries identity, and awareness of the national marine sanctuary system.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Quad-City Foreign-Trade Zone, Inc., grantee of FTZ 133, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on August 8, 2012.
FTZ 133 was approved by the Board on October 29, 1986 (Board Order 338, 51 FR 40238, 11-5-1986) and expanded on March 31, 2011 (Board Order 1749, 76 FR 19746, 4-8-2011).
The current zone includes the following sites:
The grantee's proposed service area under the ASF would be Henderson, Henry, Mercer, Rock Island and Warren Counties, Illinois as well as Cedar, Clinton, Des Moines, Dubuque, Henry, Jackson, Johnson, Jones, Lee, Louisa, Muscatine, Scott and Washington Counties, Iowa, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Davenport, Iowa-Moline and Rock Island, Illinois Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 15, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to October 29, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
The McAllen Foreign Trade Zone, Inc., grantee of FTZ 12, submitted a notification of proposed production activity on behalf of TST NA Trim, LLC (TST), located in Hidalgo, Texas. The notification conforming to the requirements of the regulations of the Board (15 CFR 400.22) was received on July 25, 2012.
A separate application for subzone status at the TST facility was submitted and will be processed under Section 400.31 of the Board's regulations. Activity at the facility involves the lamination and cutting of automotive upholstery material for export (no shipments for U.S. consumption would occur). Production under FTZ procedures could exempt TST from customs duty payments on the foreign status upholstery materials used in export production (100% of shipments). Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Upholstery fabrics and material sourced from abroad include: laminated (polyurethane coated) polyester knit, polyester warp knit (pile), polyester and nylon warp knit, and leather (duty rate ranges from free to 17.2%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is September 24, 2012.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Pierre Duy at
Pursuant to Section 766.24 of the Export Administration Regulations, 15 CFR parts 730-774 (2012) (“EAR” or the “Regulations”), I hereby grant the request of the Office of Export Enforcement (“OEE”) to renew the February 15, 2012 Order Temporarily Denying the Export Privileges of Mahan Airways, Zarand Aviation, Gatewick LLC, Pejman Mahmood Kosarayanifard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, and Ali Eslamian, as modified by an order dated April 9, 2012, adding Mahan Air General Trading LLC, Skyco (UK) Ltd., and Equipco (UK) Ltd. as related persons. I find that renewal of the Temporary Denial Order (“TDO”) is necessary in the public interest to prevent an imminent violation of the EAR.
On March 17, 2008, Darryl W. Jackson, the then-Assistant Secretary of Commerce for Export Enforcement (“Assistant Secretary”), signed a TDO denying Mahan Airways' export privileges for a period of 180 days on the grounds that its issuance was
The TDO subsequently has been renewed in accordance with Section 766.24(d), including most recently on February 15, 2012, with modifications and the additions of related persons having been made to the TDO during 2010, 2011, and most recently on April 9, 2012.
On July 24, 2012, BIS, through its Office of Export Enforcement (“OEE”), filed a written request for renewal of the TDO. The current TDO dated February 15, 2012, will expire, unless renewed, on August 13, 2012. Notice of the renewal request was provided to Mahan Airways and Zarand Aviation by delivery of a copy of the request in accordance with Sections 766.5 and 766.24(d) of the Regulations. Although not required by the Regulations, courtesy copies of the renewal request were sent to the other parties, originally named to the TDO as related persons. No opposition to any aspect of the renewal of the TDO has been received from either Mahan Airways or Zarand Aviation. Furthermore, no appeal of the related person determinations I made as part of the of the September 3, 2010, February 25, 2011, August 24, 2011, and April 9, 2012 Renewal Orders has been made by Gatewick LLC, Kosarian Fard, Mahmoud Amini, Kerman Aviation, Sirjanco Trading LLC, Ali Eslamian, Mahan Air General Trading LLC, Skyco (UK) Ltd., or Equipco (UK) Ltd.
Pursuant to Section 766.24, BIS may issue or renew an order temporarily denying a respondent's export privileges upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations. 15 CFR 766.24(b)(1) and 776.24(d). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
OEE's request for renewal is based upon the facts underlying the issuance of the initial TDO and the TDO renewals in this matter and the evidence developed over the course of this investigation indicating a blatant disregard of U.S. export controls and the TDO. The initial TDO was issued as a result of evidence that showed that Mahan Airways and other parties engaged in conduct prohibited by the EAR by knowingly re-exporting to Iran three U.S.-origin aircraft, specifically Boeing 747s (“Aircraft 1-3”), items subject to the EAR and classified under Export Control Classification Number (“ECCN”) 9A991.b, without the required U.S. Government authorization. Further evidence submitted by BIS indicated that Mahan Airways was involved in the attempted re-export of three additional U.S.-origin Boeing 747s (“Aircraft 4-6”) to Iran.
As discussed in the September 17, 2008 TDO Renewal Order, evidence presented by BIS indicated that Aircraft 1-3 continued to be flown on Mahan Airways' routes after issuance of the TDO, in violation of the Regulations and the TDO itself.
The March 9, 2010 Renewal Order also noted that a court in the United Kingdom (“U.K.”) had found Mahan Airways in contempt of court on February 1, 2010, for failing to comply with that court's December 21, 2009 and January 12, 2010 orders compelling Mahan Airways to remove the Boeing 747s from Iran and ground them in the Netherlands. Mahan Airways and the Balli Group Respondents had been litigating before the U.K. court concerning ownership and control of Aircraft 1-3. In a letter to the U.K. court dated January 12, 2010, Mahan Airways' Chairman indicated,
The September 3, 2010 Renewal Order pointed out that Mahan Airways' violations of the TDO extended beyond operating U.S.-origin aircraft in violation of the TDO and attempting to acquire additional U.S.-origin aircraft. In February 2009, while subject to the TDO, Mahan Airways participated in the export of computer motherboards, items subject to the Regulations and designated as EAR99, from the United States to Iran, via the UAE, in violation of both the TDO and the Regulations, by transporting and/or forwarding the computer motherboards from the UAE to Iran. Mahan Airways' violations were facilitated by Gatewick LLC, which not only participated in the transaction, but also has stated to BIS that it is Mahan Airways' sole booking agent for cargo and freight forwarding services in the UAE.
Moreover, in a January 24, 2011 filing in the U.K. Court, Mahan Airways asserted that Aircraft 1-3 were not being used, but stated in pertinent part that the aircraft were being maintained in Iran especially “in an airworthy condition” and that, depending on the outcome of its U.K. Court appeal, the aircraft “could immediately go back into service.* * * on international routes into and out of Iran.” Mahan Airways' January 24, 2011 submission to U.K. Court of Appeal, at p. 25, paragraphs 108,110. This clearly stated intent, both on its own and in conjunction with Mahan Airways' prior misconduct and statements, demonstrated the need to renew the TDO in order to prevent imminent future violations.
More recently, as noted in the July 1, 2011 and August 24, 2011 Orders, Mahan Airways has continued to evade U.S. export control laws by operating two Airbus A310 aircraft
At the time of the July 1, 2011 and August 24, 2011 Orders, these Airbus A310s were registered in France, with tail numbers F-OJHH and F-OJHI, respectively. After the August 24, 2011 renewal, Mahan Airways and Zarand Aviation worked in concert, along with Kerman Aviation, to de-register the two Airbus A310 aircraft in France and to register both aircraft in Iran (with, respectively, Iranian tail numbers EP-MHH and EP-MHI).
OEE has presented evidence with its current renewal request indicating that apparently some time after the February 15, 2012 renewal, the registration switch for these A310s was cancelled, and that these two aircraft are flying with Mahan livery under French registration (with tail numbers F-OJHH and F-OJHI, respectively), instead of Iranian registration. Most significantly, OEE's evidence indicates that both aircraft are active in Mahan Airways' fleet on flights in and out of Iran. These violations of the TDO, including those involving the Zarand Aviation aircraft, indicate that the aircraft likely will continue to operate in a manner contrary to U.S. export control laws.
OEE also has obtained and submitted new evidence that Mahan Airways has obtained another Airbus A310 aircraft. This aircraft (Manufacturer Serial Number 499) is listed on Mahan's Air Fleet list with the Iranian registered tail number EP-VIP and referred to as a “VIP Aircraft” with a former registration number of “1022.” Open source information submitted by OEE indicates that an A310 with a German Air Force designation of 10-22 served as the German “presidential” aircraft, was sold in Germany as surplus in late 2011, re-sold shortly thereafter to what was identified as an Eastern European investment group, and then re-sold and transported to Mahan Airways in Iran via the Ukraine. This acquisition and reexport by and/or for Mahan Airways violated the TDO and the Regulations. In addition, although the Mahan Air Fleet list submitted by OEE indicates that this aircraft was parked in Tehran as of mid-July 2012, OEE reasonably believes that additional reexport violations are imminent in connection with this aircraft.
OEE's renewal request also includes additional evidence relating to previously discussed efforts by related persons to procure aircraft and aircraft parts for Mahan Airways in violation of the TDO and the Regulations. As detailed in prior orders, Ali Eslamian was added as a related person on August 24, 2011. Among other pertinent activities, he formed Skyco (UK) Ltd. (“Skyco”), which buys and sells aircraft, aircraft engines and other aviation related services, with Mahan Airways' Managing Director (Hamid Arabnejad) and its Vice-President for Business Development (Ghulam Redha Khodra Mahmoudi a/k/a Gholemreza Mahmoudi), in order to carry out transactions on behalf of Mahan Airways and acquire items that Mahan could not obtain on its own due to the U.S. embargo against Iran.
Eslamian's involvement in Mahan Airways' original conspiracy to acquire U.S.-origin Boeing 747s that led to the initial issuance of the TDO included inspecting the 747s and participating in the initial meetings between Mahan and the Balli Group principals during which it was proposed that the Balli Group or Balli entities would act as a front for Mahan in its scheme to acquire U.S.-origin aircraft. Eslamian has admitted longstanding business relationships and connections to senior Mahan Airways officers and/or directors, including Mr. Arabnejad and Mr. Mahmoudi, and has detailed insight into how Mahan Airways maintains and repairs its aircraft through the use of facilities in third countries.
Prior orders in this matter also discuss the evidence that Eslamian has negotiated, including through his company Equipco (UK) Ltd. (“Equipco”), with a Brazilian airline for the purchase of two Airbus A-320 aircraft and one aircraft engine, all items that are subject to the Regulations and require U.S. Government authorization for re-export to Iran.
As set forth in the April 9, 2012 order, Mahan Air General Trading's articles of incorporation list Mahan Airways' Managing Director, Hamid Arabnejad, as an owner. Mahan Air General Trading also shares the same Dubai address and fax number with Sirjanco Trading LLC, another denied party that is related to Mahan Airways and acquires and resells aircraft parts and components. Sirjanco is owned in part by Mr. Mahmoudi, Mahan's Vice-President for Business Development.
Under the applicable standard set forth in Section 766.24 of the Regulations and my review of the record here, I find that the evidence presented by BIS convincingly demonstrates that Mahan Airways has continually violated the EAR and the TDO, that such knowing violations have been significant, deliberate and covert, and that there is a likelihood of future violations. Additionally, Zarand Aviation's Airbus A310 continues to be operated on routes into and out of Iran in violation of the Regulations and the TDO itself, and as discussed in prior orders, Zarand Aviation has acted in concert with Mahan Airways in an effort to evade the TDO and U.S. export control laws. Therefore, renewal of the TDO is necessary to prevent imminent violation of the EAR and to give notice to companies and individuals in the United States and abroad that they should continue to cease dealing with Mahan Airways, Zarand Aviation, and the other denied persons under the TDO in export transactions involving items subject to the EAR. The conduct of Mahan Airways, Zarand Aviation, and those related to them or acting in concert with them, such as Kerman Aviation, Ali Eslamian, Skyco (UK) Ltd. and Equipco (UK) Ltd., raise significant ongoing concerns relating to the acquisition and use of aircraft, aircraft engines or other parts, and aircraft services in violation of the Regulations and the TDO.
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
A. Export or reexport to or on behalf of a Denied Person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
In accordance with the provisions of Sections 766.24(e) of the EAR, Mahan Airways and/or Zarand Aviation may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202-4022. In accordance with the provisions of Sections 766.23(c)(2) and 766.24(e)(3) of the EAR, Gatewick LLC, Mahmoud Amini, Kosarian Fard, Kerman Aviation, Sirjanco Trading LLC, Ali Eslamian, Mahan Air General Trading LLC, Skyco
In accordance with the provisions of Section 766.24(d) of the EAR, BIS may seek renewal of this Order by filing a written request not later than 20 days before the expiration date. A renewal request may be opposed by Mahan Airways and/or Zarand Aviation as provided in Section 766.24(d), by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, which must be received not later than seven days before the expiration date of the Order.
A copy of this Order shall be provided to Mahan Airways, Zarand Aviation and each related person and shall be published in the
Import Administration, International Trade Administration, Department of Commerce.
On July 31, 2012, the United States Court of International Trade (CIT) affirmed the Department of Commerce's (the Department's) results of third redetermination pursuant to the CIT's remand in
Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in
Dennis McClure, AD/CVD Operations, Office 3, Import Administration—International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-5973.
On February 14, 2007, the Department published its final results of the ninth administrative review of the antidumping duty order on certain pasta from Italy.
Atar challenged the Department's
On September 3, 2009, the Department filed its first remand redetermination with the CIT, recalculating CV profit and ISE using a weighted average of the sales data from two of the six respondents in the prior review because only those two respondents had earned a profit when the Department included sales made outside the ordinary course of trade in the profit calculation.
On July 19, 2010, the Department filed its second remand redetermination with the CIT.
The CAFC subsequently issued a decision in
Pursuant to the Court's remand order in
In its decision in
Because there is now a final court decision, the weighted-average dumping margin for Atar for the period July 1, 2004, through June 30, 2005, is 11.76 percent. However, in accordance with the Section 129 Determination, Atar's cash deposit rate is 0.00 percent.
In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct CBP to assess antidumping duties on entries of the subject merchandise during the POR from Atar based on the revised assessment rates calculated by the Department.
This notice is issued and published in accordance with sections 516A(c), 751(a), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On March 27, 2012, in
Matthew Renkey, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2312.
On July 13, 2009, the Department issued a final scope ruling on carbon steel butt-weld pipe fittings from the PRC used in structural applications.
In
As noted above, the CAFC subsequently reversed the CIT's decision in
In accordance with the CAFC's decision in
This notice is issued and published in accordance with section 516A(c)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.225.
Import Administration, International Trade Administration, Department of Commerce.
August 15, 2012.
On April 12, 2012, the U.S. Department of Commerce (“the Department”) published the preliminary results of the administrative review of the antidumping duty order on saccharin from the People's Republic of China (“PRC”) for the period of review (“POR”) July 1, 2010, through June 30, 2011.
Paul Stolz, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4474.
On April 12, 2012, the Department published the preliminary results of this administrative review in the
The period of review is July 1, 2010 through June 30, 2011.
The product covered by the antidumping duty order is saccharin. Saccharin is defined as a non-nutritive sweetener used in beverages and foods, personal care products such as toothpaste, table top sweeteners, and animal feeds. It is also used in metalworking fluids. There are four primary chemical compositions of saccharin: (1) Sodium saccharin (American Chemical Society Chemical Abstract Service (“CAS”) Registry 128-44-9); (2) calcium saccharin (CAS Registry 6485-34-3); (3) acid (or insoluble) saccharin (CAS Registry 81-07-2); and (4) research grade saccharin. Most of the U.S.-produced and imported grades of saccharin from the PRC are sodium and calcium saccharin, which are available in granular, powder, spray-dried powder, and liquid forms. The merchandise subject to the order is currently classifiable under subheading 2925.11.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”) and includes all types of saccharin imported under this HTSUS subheading, including research and specialized grades. Although the HTSUS subheading is provided for convenience and customs purposes, the Department's written description of the scope of the order remains dispositive.
In the preliminary results of this review the Department stated that it intended to rescind this review with respect to Kingchem, for which the request for review was timely withdrawn.
In the
In the
For all shipments of the subject merchandise by the PRC-wide entity entered, or withdrawn from warehouse, for consumption during the POR we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties at the
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (“the Act”): (1) For previously investigated or reviewed PRC and non-PRC exporters that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (2) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide entity rate of 329.94 percent; and (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation, which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to the North Slope Borough Department of Wildlife Management, P.O. Box 69, Barrow, AK 99723 [Taqulik Hepa, Responsible Party; Dr. John C. George, Principal Investigator] to collect, import, export, and receive marine mammal parts for scientific research.
The permit and related documents are available for review upon written request or by appointment in the following offices:
Laura Morse or Amy Sloan, (301) 427-8401.
On June 19, 2012 notice was published in the
The permit authorizes the collection, receipt, import and export of samples of marine mammals taken by Alaskan Native subsistence hunters; and the receipt, import, and export of specimens from legal foreign (Russia and Canada) and domestic subsistence-collected marine mammals of the following species: bearded seal (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information on spectrum management policy matters.
The meeting will be held on October 4, 2012, from 10 a.m. to 1 p.m., Eastern Daylight Time.
The meeting will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4830, Washington, DC 20230. Public comments may be mailed to Commerce Spectrum Management Advisory Committee, National Telecommunications and Information Administration, 1401 Constitution Avenue NW., Room 4099, Washington, DC 20230 or emailed to
Bruce M. Washington, Designated Federal Officer, at (202) 482-6415 or
1. WG1 1695-1710 MHz Weather Satellite Receive Earth Stations,
2. WG2 1755-1850 MHz Law Enforcement Surveillance and other short-range fixed,
3. WG3 1755-1850 MHz Satellite Control Links and Electronic Warfare,
4. WG4 1755-1850 MHz Fixed Point-to-Point and Tactical Radio Relay, and
5. WG5 1755-1850 MHz Airborne Operations.
NTIA will post a detailed agenda on its Web site,
10 a.m., Friday September 7, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 21, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 21, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 28, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
10 a.m., Friday September 14, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202-418-5084.
Department of the Navy, DoD.
Notice of Record of Decision.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, 42 United States Code (U.S.C) 4321-4374, as implemented by the Council on Environmental Quality regulations, 40 Code of Federal Regulations (CFR) Parts 1500-1508, Department of the Navy (DoN) NEPA regulations (32 CFR part 775), and Marine Corps Order P5090.2A (with Changes 1 and 2) Marine Corps Environmental Compliance and Protection Manual, Chapter 12, the DoN announces its decision to base and operate up to two Marine Medium Tiltrotor (VMM) squadrons (up to 12 MV-22 Osprey per squadron, for a total of 24 aircraft) and one Marine Light Attack Helicopter (HMLA) squadron (15 AH-1 Cobra attack and 12 UH-1 Huey utility helicopters, for a total of 27 aircraft) in support of III Marine Expeditionary Force elements in Hawaii.
The tiltrotor MV-22 Osprey aircraft provides the “next generation equipment” offering increased speed, longer range, and greater mission versatility than a helicopter. The MV-22 also satisfies the medium-lift capability needed for assault support transport of combat troops, equipment, and supplies. The HMLA squadron will be relocated from Marine Corps Base (MCB) Camp Pendleton to provide rotary-wing light-lift and attack capabilities not currently based in Hawaii and routine training with infantry. The 3d Regiment at MCB Hawaii Kaneohe Bay is the only infantry regiment within the Marine Corps that
In support of the proposed action to base and operate up to two VMM squadrons and one HMLA squadron in Hawaii, the DoN will: (1) Implement facilities projects at MCB Hawaii Kaneohe Bay to accommodate the squadrons, to include demolition, new construction, and renovation; (2) conduct aviation training, readiness, and special exercise operations at training facilities and federally obligated state airports statewide; and (3) construct improvements at selected training facilities.
All practical means to avoid or minimize environmental harm from the selected alternative have been adopted.
The complete text of the Record of Decision is available for public viewing on the project Web site at
Defense Nuclear Facilities Safety Board.
Notice of Public Meeting and Hearing.
Pursuant to the provisions of the “Government in the Sunshine Act”
(5 U.S.C. 552b), and as authorized by 42 U.S.C. 2286b, notice is hereby given of the Defense Nuclear Facilities Safety Board's (Board) public meeting and hearing described below. The Board invites interested persons or groups to present comments, technical information, or data concerning safety issues related to the matters to be considered.
Session I: 1 p.m.—5 p.m., October 2, 2012; Session II: 6:30 p.m.—9 p.m., October 2, 2012.
Knoxville Convention Center, 701 Henley Street, Knoxville, Tennessee 37902.
Open. While the Government in the Sunshine Act does not require that the scheduled discussion be conducted in a meeting, the Board has determined that an open meeting in this specific case furthers the public interests underlying both the Sunshine Act and the Board's enabling legislation.
In Session I of this public meeting and hearing, the Board will examine the National Nuclear Security Administration's (NNSA) efforts to mitigate risks to public and worker safety posed by aging defense nuclear facilities at the Y-12 National Security Complex. The Board will receive testimony from NNSA and its contractors concerning the operations at existing Y-12 defense nuclear facilities, including Building 9212, Building 9204-2E, and Building 9215. The Board is interested in actions taken to address recent issues with conduct of operations, maintenance, and work planning; the contractor's processes for identifying and resolving safety issues; and the effectiveness of NNSA's oversight for nuclear operations. The Board will also examine the status of emergency preparedness at Y-12 and will receive testimony concerning how well NNSA and its contractor are prepared to respond to severe events and site emergencies. The Board is interested in lessons learned from the events at the Fukushima Daiichi complex and the actions taken to incorporate these lessons learned at the site-wide level and in defense nuclear facility operations. During Session II, the Board will receive testimony regarding factors that could affect the timely execution and safety of the Uranium Processing Facility (UPF) project. These factors include the federal project team's strategy for identifying and resolving safety issues in a timely manner. The Board is also interested in exploring the potential safety impacts of NNSA's decision to accelerate the acquisition of select processing capabilities and defer others to a later date, as well as the potential for weaknesses in technology development to impact safety. The public hearing portion of this proceeding is authorized by 42 U.S.C. 2286b.
Debra Richardson, Deputy General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004-2901, (800) 788-4016. This is a toll-free number.
Public participation in the hearing is invited. The Board is setting aside time at the end of each session of the hearing for presentations and comments from the public. Requests to speak may be submitted in writing or by telephone. The Board asks that commenters describe the nature and scope of their oral presentations. Those who contact the Board prior to close of business on September 28, 2012, will be scheduled to speak at the session of the hearing most relevant to their presentations. At the beginning of Session I, the Board will post a schedule for speakers at the entrance to the hearing room. Anyone who wishes to comment or provide technical information or data may do so in writing, either in lieu of, or in addition to, making an oral presentation. The Board Members may question presenters to the extent deemed appropriate. Documents will be accepted at the hearing or may be sent to the Board's Washington, DC, office. The Board will hold the record open until November 2, 2012, for the receipt of additional materials. The hearing will be presented live through Internet video streaming. A link to the presentation will be available on the Board's Web site (
Department of Education.
Notice.
As required by the Paperwork Reduction Act of 1995, this notice
Interested persons are invited to submit comments on or before October 15, 2012.
Comments may be submitted electronically by emailing
The Secretary is publishing this request for comment under the Provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The determination of need and eligibility are for the following Title IV, HEA, federal student financial assistance programs: the Federal Pell Grant Program; the Campus-Based programs (Federal Supplemental Educational Opportunity Grant, Federal Work-Study, and the Federal Perkins Loan Program); the William D. Ford Federal Direct Loan Program; the Teacher Education Assistance for College and Higher Education Grant; and the Iraq and Afghanistan Service Grant.
Federal Student Aid, an office of the U.S. Department of Education (hereafter “the Department”), subsequently developed an application process to collect and process the data necessary to determine a student's eligibility to receive Title IV, HEA program assistance. The application process involves an applicant's submission of the
The Department seeks OMB approval of all application components as a single “collection of information”. The aggregate burden will be accounted for under OMB Control Number 1845-0001. The specific application components, descriptions and submission methods for each are listed in Table 1.
This information collection also documents an estimate of the annual public burden as it relates to the application process for federal student aid. The Applicant Burden Model (ABM), measures applicant burden through an assessment of the activities each applicant conducts in conjunction with other applicant characteristics and in terms of burden, the average applicant's experience. Key determinants of the ABM include:
■ The total number of applicants that will potentially apply for federal student aid;
■ How the applicant chooses to complete and submit the FAFSA (e.g., by paper or electronically via FOTW);
■ How the applicant chooses to submit any corrections and/or updates (e.g., the paper SAR or electronically via FOTW Corrections);
■ The type of SAR document the applicant receives (eSAR, SAR acknowledgment, or paper SAR);
■ The formula applied to determine the applicant's expected family contribution (full need analysis formula, Simplified Needs Test or Automatic Zero); and
■ The average amount of time involved in preparing to complete the application.
The ABM is largely driven by the number of potential applicants for the application cycle. The total application projection for 2013-2014 is based upon two factors—estimates of the total enrollment in all degree-granting
For 2013-2014, the Department is reporting a net burden reduction of 3,398,000 hours. The reduction is a reflection of the effects of simplifying FAFSA on the Web, which is utilized by the majority of applicants who apply for aid. Simplification of the application is demonstrated by (1) the average completion times for initial submissions and; (2) fewer corrections being made to the application.
The projected average completion times for initial submissions has decreased by 11 minutes for 2013-14. In data reported in the 2012-2013 supporting statement, first-time filers using FOTW would take approximately 1.30 hours (78 minutes) to submit an application. The data from 2011-12 indicate that the same user would be able to submit their application in 1.12 hours (67 minutes), reducing their burden by .18 hours (11 minutes).
Corrections are also projected to decrease by 760,696 responses for 2013-14. Fewer corrections mean that more comprehensive and accurate data was captured in the initial submission of the application.
Updated completion times were calculated for each component and have been used to estimate the burden, excluding the change in the applicant volume. The results demonstrate that the burden for all applicants would have decreased by almost 13 percent or 3,758,702 hours, if the application volume had remained constant.
If the Department had not simplified the application process, thus reducing the time required to complete the FAFSA, the new burden estimates would only need to account for the change in applicants. The 1.43% increase in applicants would result in an increase in burden of 347,945 hours.
Accounting for both the increase in total applicants and the decrease in individual applicant burden, the net change is an overall decrease of almost 12 percent or 3,398,000 hours. The following Table shows the net burden change and total cost for applicants. The change in total annual responses is also listed in the Table. Total annual responses include the original FAFSA submission and corrections.
The Department takes pride in the continued efforts to simplify the FAFSA submission process and the continued decrease in burden associated with the application process, even as the Department serves more students each year. The results confirm the significant improvements that have been made to the application process. The Department believes that these changes will lead to more students completing the FAFSA and will assist more students with their pursuit of postsecondary education through access to Title IV, HEA program assistance.
The Secretary is publishing this request for comment under the Provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The Perkins Discretionary Grant Performance Report will be used for interim and final performance reporting. The Perkins Discretionary Grant Performance Report form will also be used by grant recipients for other interim reporting such as quarterly or semi-annual performance and/or financial reporting.
Interested persons are invited to submit comments on or before October 15, 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 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.
Office of Elementary and Secondary Education, Department of Education.
Notice; correction.
On June 6, 2012, we published in the
Fran Walter, U.S. Department of Education, 400 Maryland Avenue SW., Room 3W115, Washington, DC 20202-0001. Telephone: (202) 205-9198 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
1. On page 33564, first column, under the heading
2. On page 33567, second column, under the heading “3.
3. On page 33567, second column, under the heading “4.
You may also access documents of the Department published in the
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing
Take notice that on July 31, 2012, NorthWestern Corporation (NorthWestern) filed a Rate Election pursuant to 284.123(b)(1) of the Commissions regulations and to revise its Statement of Operating Conditions. NorthWestern proposes to utilize rates that are the same as those contained in NorthWestern's storage and transportation rate schedules for comparable intrastate service on file with the Montana Public Service Commission as more fully detailed in the petition.
Any person desiring to participate in this rate filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 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 date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not 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
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Chemical Substances Inventory (TSCA Inventory)) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before September 14, 2012.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0612, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. 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.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
Environmental protection, Chemicals, Hazardous substances, Imports, Notice of commencement, Premanufacturer, Reporting and recordkeeping requirements, Test marketing exemptions.
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), 42 U.S.C. 7413(g), notice is hereby given of a proposed consent decree to address a lawsuit filed by American Bottom Conservancy in the United States District Court for the Southern District of Illinois:
Written comments on the proposed consent decree must be received September 14, 2012.
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2012-0577, online at
Kaytrue Ting, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564-6380; fax number (202) 564-5603; email address:
This proposed consent decree would resolve a lawsuit alleging that the Administrator failed to perform a nondiscretionary duty to grant or deny, within 60 days of submission, an administrative petition to object to a CAA Title V permit issued by the Illinois Environmental Protection
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed consent decree from persons who are not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines that consent to this consent decree should be withdrawn, the terms of the decree will be affirmed.
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2012-0577) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or on paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD-ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. An agency 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 control number. Comments are requested concerning whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to
The FCC 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.
Written comments should be submitted on or before September 14, 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, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via fax 202-395-5167, or via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page <
On April 27, 2012, the Commission released the Empowering Consumers to Prevent and Detect Billing for Unauthorized Charges (“Cramming”), Report and Order and Further Notice of Proposed Rulemaking, CG Docket No. 11-116, CG Docket No. 09-158, CC Docket No. 98-170, FCC 12-42 (Cramming Report and Order and Further Notice of Proposed Rulemaking); published at 77 FR 30972, May 24, 2012, which determined that additional rules are needed to help consumers prevent and detect the placement of unauthorized charges on their telephone bills, an unlawful and fraudulent practice commonly referred to as “cramming.”
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than August 30, 2012.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566:
1.
B. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
2.
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 September 7, 2012.
A. Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045-0001:
1.
B. Federal Reserve Bank of Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
1.
Department of Health and Human Services (HHS).
Notice to alter existing systems of records.
In accordance with the requirements of the Privacy Act of 1974, HHS gives notice of a proposed alteration to two existing systems of records covering payroll records: 09-40-0006 entitled “Public Health Service (PHS) Commissioned Corps Payroll Records, HHS/PSC/HRS,” and 09-40-0010 entitled “Pay, Leave and Attendance Records, HHS/PSC/HRS.” The systems are being amended to revise an existing routine use covering disclosures to contractors and to add a new routine use pertaining to system security. The routine use changes are described in more detail in the Supplementary Information section below.
The routine use changes described in this notice will become effective without further notice 30 days after publication of this notice in the
The public should address written comments to: Office of the Surgeon General (OSG), Division of Systems Integration (DSI), Tower Oaks Building, Plaza Level 100, 1101 Wootton Parkway, Rockville, Maryland 20852. Comments will be available for public viewing at that location. To review comments in person, please contact the Office of the Surgeon General (OSG), Division of Systems Integration, at 240-453-6085.
For system 09-40-0006, contact CAPT Eric Shih, Office of the Surgeon General (OSG), Division of Systems Integration (DSI) Tower Oaks Building, Plaza Level 100, 1101 Wootton Parkway, Rockville, Maryland 20852, 240-453-6085,
The Privacy Act (5 USC 552a) governs the means by which the U.S. Government collects, maintains, and uses information about individuals in a system of records. A “system of records” is a group of any records under the control of a Federal agency from which information about an individual is retrieved by the individual's name or other personal identifier. The Privacy Act requires each agency to publish in the
The payroll systems proposed to be altered are described in System of Records Notices (SORNs) published on December 11, 1998 (see 63 FR 68596). System 09-40-0006 covers payroll records for HHS Commissioned Corps personnel, and system 09-40-0010 covers payroll records for HHS civilian personnel. In reviewing the SORNs, it was determined that the following changes in routine uses should be made for both systems. Both changes are compatible with the purposes for which personally identifiable information (PII) is collected in each system, as explained below:
•
•
Because they represent significant changes to the systems, a report on these proposed routine use changes was sent
For the reasons set forth above, HHS is establishing the following routine uses for these systems:
The National Center for Health Statistics (NCHS), Classifications and Public Health Data Standards Staff announces the following meeting:
Participants who attended previous ICD-9-CM C&M meetings will no longer be automatically added to the visitor list. You must request inclusion of your name prior to each meeting you attend.
Please register to attend the meeting on-line at:
Please contact Mady Hue (410-786-4510 or
Agenda items are subject to change as priorities dictate.
CMS and NCHS will no longer provide paper copies of handouts for the meeting. Electronic copies of all meeting materials will be posted on the CMS and NCHS Web sites prior to the meeting at
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Member Conflict Review, Program Announcement (PA) 07-318, initial review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's 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.
In accordance with the provisions of the ACA referenced above, the U.S. Department of Health and Human Services created a Web site called healthcare.gov to meet these and other provisions of the law, and data collection was conducted for six months based upon an emergency information collection request. The interim final rule published on May 5, 2010 served as the emergency
We are currently updating a system (hereon referred to as web portal) where State Departments of Insurance and issuers may log in using a custom user ID and password validation. The states may be asked to provide information on issuers in their state and various web sites maintained for consumers. The issuers will be tasked with providing information on their major medical insurance products and plans. They will ultimately be given the choice to download a basic information template to enter data then upload into the web portal; to manually enter data within the web portal itself; or to submit .xml files containing their information. Once the states and issuers submit their data, they will receive an email notifying them of any errors, and that their submission was received. We are mandating the issuers verify and update their information on a quarterly basis, and are requesting that states verify state-submitted information on an annual basis. In the event that an issuer enhances its existing plans, proposes new plans, or deactivates plans, the organization would be required to update the information in the web portal. Changes occurring during the three month quarterly periods will be allowed utilizing effective dates for both
Information that is to be collected from state high risk pools will be collected from The National Association of State Comprehensive Health Insurance Plans (NASCHIP) at this time. Updates to this information may be submitted voluntarily. The estimated hour burden on issuers for the Plan Finder data collection in the first year is estimated as 90,400 total burden hours, or 113 hours per organization. This estimate is based on an assumed average of 450 individual plan issuers and 700 small group plan issuers per each of the four quarterly collections. It includes 30 hours per organization for training and communication. Additionally, for each of the issuers it includes 11 hours of preparation time, one hour of login and upload time, two hours of troubleshooting and data review, and one half hour for attestation per organization per quarterly refresh. The estimated hour burden on the states is informed by the fact that they have already submitted the data once and only need to update. The overall hours estimate is 575, or 11.5 per Department of Insurance. This is premised on 2 hours of training and communication, 8 hours for data collection, and one half hour of submission.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
Interested parties are invited to send comments regarding the burden or any other aspect of these collections of information requirements. To ensure consideration of your comments and recommendations, they must be submitted in one of the following ways by September 13, 2012:
1.
2.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by October 15, 2012:
1.
2.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by October 15, 2012.
Submit electronic comments on the collection of information to
Domini Bean, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400T, Rockville, MD 20850,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Nutrition Labeling and Education Act gave FDA the authority to promulgate regulations which require almost all packaged foods to bear nutrition labeling. The law also allows manufacturers to provide other nutrition information on labels in the form of various types of statements, including claims, as long as such statements comply with the regulatory limits that govern the use of each type of statement. There are three types of claims that the food industry can voluntarily use on food labels: (1) Health claims, (2) nutrient content claims, and (3) structure/function claims. All claims must be truthful and not misleading (Ref. 1).
The FDA's policy on fortification (21 CFR 104.20) establishes a set of principles that serve as a model for the rational addition of nutrients to foods. The FDA has an interest in the American public achieving and maintaining diets with optimal levels of nutritional quality, wherein healthy diets are composed of foods from a variety of nutrient sources. The FDA does not encourage the addition of nutrients to certain food products (including sugars or snack foods such as [cookies] candies, and carbonated beverages). FDA is interested in studying whether fortification of these foods could cause consumers to believe that substituting fortified snack foods for more nutritious foods would ensure a nutritionally sound diet.
Research suggests consumer product perceptions and purchase decisions can be influenced by labeling statements and different labeling statements may have different influences (Refs. 2 through 5). The FDA, as part of its effort to promote public health, proposes to conduct two related studies to explore consumer responses to expressed and implied nutrient content claims on the labels of snack foods such as cookies, carbonated beverages, and candy. Both studies will be controlled, randomized experiments. Study 1 will use a 15-minute Web-based questionnaire to collect information from 4,000 English-speaking adult members of an online consumer panel maintained by a contractor. Study 2 will use the same questionnaire and draw a sample of 1,000 English-speaking adult participants from the same online consumer panel to test a subset of the experimental conditions employed in Study 1. Participants in Study 2 will also access the survey on the Web but will use a grocery-shopping simulation software program to participate in the study. Study 2 is expected to last 15 minutes as well.
The purpose for using both the regular Web-based application and the simulated shopping program is to be able to compare the two modes of data collection. One critique of experimental studies is that they may lack external validity—the ability to generalize the findings beyond the study setting because the study is very different from real life (Ref. 6). The grocery-shopping simulation software program may more closely mimic consumers' real-life shopping experiences compared to the regular Web-based application and would therefore be expected to elicit survey responses similar to real-life food shopping. One study comparing simulated shopping with actual behavior concluded that consumers' simulated purchase behaviors are highly predictive of their actual behavior (Ref. 7). If proposed Study 1 and Study 2 results are comparable, this will lend support to the external validity of online experimental study results. Researchers will endeavor to collect samples that reflect the U.S. Census on gender,
Potential conditions for the studies include the following: (1) A mock snack product with a claim similar to “[a]s much [nutrient] as a serving of [food product];” (2) a mock candy with the claim “[g]ood source of [nutrient];” and (3) a mock carbonated beverage with the claim, “product name] plus [nutrient].” Each participant in each study will be randomly assigned to view a label image. Each participant in each study will also be randomly allowed or disallowed to access the Nutrition Facts label of the product. All label images will be mock products resembling actual food labels found in the marketplace.
Participants will view label images and answer questions about their perceptions and reactions to the label. Product perceptions (e.g., healthiness, potential health benefits, levels of nutrients), label perceptions (e.g., helpfulness and credibility), and purchase/choice questions will constitute the measures of response in the experiment. To help understand the data, the survey will also collect information about participants' background, such as purchase and consumption of similar products; nutrition knowledge; dietary interests; motivation regarding label use; health status and demographic characteristics.
The studies are part of the Agency's continuing effort to enable consumers to make informed dietary choices and construct healthful diets. Results of the studies will be used primarily to inform the Agency's understanding of how claims on the packages of fortified food may affect how consumers perceive a product or a label, which may in turn affect their dietary choices. The results of the studies will neither be used to develop population estimates nor be directly used to inform policy.
FDA estimates the burden of this collection of information as follows:
The following references have been placed on display in the division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Suicidal Ideation and Behavior: Prospective Assessment of Occurrence in Clinical Trials.” The purpose of this guidance is to assist sponsors in prospectively assessing the occurrence of treatment-emergent suicidal ideation and behavior in clinical trials of drug and biological products, including drugs for psychiatric and nonpsychiatric indications. This guidance revises and replaces a previous draft guidance
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by October 15, 2012.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 2201, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Thomas Laughren, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, rm. 4114, Silver Spring, MD 20993-0002, 301-796-2260.
FDA is announcing the availability of a draft guidance for industry entitled “Suicidal Ideation and Behavior: Prospective Assessment of Occurrence in Clinical Trials.” The purpose of this guidance is to assist sponsors in prospectively assessing the occurrence of treatment-emergent suicidal ideation and behavior in clinical trials of drug and biological products. Specifically, this guidance addresses FDA's current thinking regarding the importance of suicidal ideation and behavior assessment in psychiatric and nonpsychiatric drug trials and the general principles for how best to accomplish this assessment during drug development.
Prospective assessment of suicidal ideation and behavior involves actively querying patients about the occurrence of suicidal thinking and behavior, rather than relying on patients to report such occurrences spontaneously, followed by retrospective classification of events into appropriate categories. This guidance recommends a specific suicidal ideation and behavior assessment instrument that can be used to conduct such prospective assessments and offers guidance on the use of alternative instruments.
This guidance is intended to serve as a focus for continued discussions among FDA, pharmaceutical sponsors, the academic community, and the public. This guidance does not address the complex analytic issues involved in the analysis of the suicidal ideation and behavior data that will be derived from prospective assessments of suicidal ideation and behavior; these issues will be addressed in separate guidances.
This guidance is a revision of the draft guidance for industry entitled “Suicidality: Prospective Assessment of Occurrence in Clinical Trials” issued September 9, 2010 (75 FR 54889). Comments we received on the draft guidance have been considered and the guidance has been revised. The revision: (1) Replaces the term “suicidality” with the terms “suicidal ideation and behavior”; (2) provides an expanded set of the Columbia Classification Algorithm for Suicide Assessment (C-CASA) categories, along with definitions and explanations; (3) revises the advice on which trials and patients would need assessments of suicidal ideation and behavior and the timing of such assessments; (4) addresses concerns about the time burden of assessments; (5) addresses questions about the possible value of the assessments providing protection for patients in the trials themselves; (6) makes it clear that use of an assessment instrument that directly classifies relevant thoughts and behaviors into C-CASA categories eliminates the need for any additional coding; (7) provides multiple additional references; and (8) revises advice on evaluation of alternative instruments.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on prospective assessment of occurrence of suicidal ideation and behavior in clinical trials. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Necessity of the Use of Food Categories in Food Facility Registrations and Updates to Food Categories.” The draft guidance identifies additional food categories to be included in food facility registrations as determined appropriate by FDA.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on the draft guidance before we begin work on the final version of the guidance, submit either electronic or written comments on the draft guidance by September 14, 2012.
Submit electronic comments on the draft guidance to
Amy Barringer, Center for Food Safety and Applied Nutrition (HFS-615), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-1988.
FDA is announcing the availability of a draft guidance for industry entitled “Necessity of the Use of Food Categories in Food Facility Registrations and Updates to Food Categories.” This draft guidance sets forth FDA's determination of the necessity for additional food categories and sets forth the additional food categories to be included as mandatory fields in food facility registrations as determined appropriate by FDA.
The FDA Food Safety Modernization Act (FSMA), enacted on January 4, 2011, amended section 415 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 350d). Section 415(a)(2) of the FD&C Act, as amended by section 102 of FSMA, provides in relevant part that, when determined necessary by FDA through guidance, a registrant is required to submit a registration to FDA containing information necessary to notify FDA of the general food category (as identified in 21 CFR 170.3) or any other food categories, as determined appropriate by FDA, including by guidance) of any food manufactured, processed, packed, or held at such facility. This draft guidance sets forth FDA's determination of the necessity for additional food categories and the other food categories to be included in food facility registrations as determined appropriate by FDA. The inclusion of these additional food categories in food facility registrations will help FDA provide a quick, accurate, and focused response to an actual or potential bioterrorist incident or other food-related emergency.
FDA is interested in comments regarding including the other food categories as mandatory fields in food facility registrations. FDA intends to issue a final guidance that identifies the additional food categories that will be included as mandatory fields in food facility registration forms before the first biennial registration renewal period, which begins on October 1, 2012.
Section 415(a)(2) of the FD&C Act provides in relevant part that a food facility is required to submit to FDA a registration containing information about the general food category (as identified listed in § 170.3 or any other food category as determined appropriate by FDA, including “by guidance”) of a food manufactured/processed, packed or held at such facility, if the Agency determines “through guidance” that such information is necessary. Because of Congress' explicit statutory authorization in section 415(a)(2) to establish binding requirements based on actions by guidance, this document is not subject to the usual restrictions in FDA's good guidance practice (GGP) regulations, such as the requirements that guidances not establish legally enforceable responsibilities and that they prominently display a statement of the document's nonbinding effect. (See 21 CFR 10.115(d)(i)).
To comply with the GGP regulations and make sure that regulated entities and the public understand that guidance documents are nonbinding, FDA guidances ordinarily contain standard language explaining that guidances should be viewed only as recommendations unless specific regulatory or statutory requirements are cited, and the Agency's guidances also ordinarily include language similar to the following paragraph:
This guidance represents the Food and Drug Administration's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. You can use an alternative approach if the approach satisfies the requirements of the applicable statutes and regulations. If you want to discuss an alternative approach, contact the FDA staff responsible for implementing this guidance. If you cannot identify the appropriate FDA staff, call the appropriate number listed on the title page of this guidance.
FDA is not including this standard language in this draft guidance because it is not an accurate description of the effect of this guidance. This guidance contains findings that serve as the predicates for binding requirements on industry. As stated in “Guidance for Industry on Necessity of the Use of Food Product Categories in Registration of Food Facilities” (2003), which implemented, in part, section 415, as added by section 305 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, it contains FDA's finding that inclusion of the food categories in § 170.3 in food facility registrations is necessary for a quick, accurate, and focused response to an actual or potential bioterrorist incident or other food-related emergency. Based in part on this finding, FDA's regulations for the registration of food facilities in 21 CFR part 1, subpart H currently require that a food facility submit a registration to FDA containing information on applicable food product categories as identified in § 170.3 for food manufactured/processed, packed, or held at such facility. As provided in section 102 of FSMA, this draft guidance contains FDA's finding that inclusion of other food categories in food facility registrations is also necessary to facilitate such rapid communications. In addition, this draft guidance sets forth the other food categories to be included in food facility registrations determined to be appropriate by FDA for the purposes of food facility registration. Insofar as this guidance, if finalized, modifies food categories for food facility registration under section 415 of the FD&C Act, it will have binding effect. For these reasons, FDA is not including the standard guidance paragraph in this draft guidance.
This draft guidance contains a collection of information that requires clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). FDA intends to submit the collection of information to OMB in the near future for emergency clearance processing under 5 CFR 1320.13. The draft guidance also refers to previously approved collections of information found in FDA regulations. The collections of information in 21 CFR 1.230-1.235 have been approved under OMB control number 0910-0502.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Paul Tran at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA), Center for Tobacco Products (CTP) is announcing an invitation for participation in its Tobacco Product Manufacturing Facility Visits. This program is intended to give FDA staff an opportunity to visit facilities involved in the manufacturing of tobacco products, including any related laboratory testing, and observe the manufacturing operations of the tobacco industry. The purpose of this notice is to invite parties interested in participating in Tobacco Product Manufacturing Facility Visits to submit requests to CTP.
Submit either an electronic or written request for participation by October 15, 2012. See section IV of this document for information on requests for participation.
If your facility is interested in participating in Tobacco Product
Lindsay Tobias, Center for Tobacco Products, Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 877-287-1373, email:
On June 22, 2009, the Family Smoking Prevention and Tobacco Control Act (Public Law 111-31; 123 Stat. 1776) was signed into law, amending the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and giving FDA authority to regulate tobacco product manufacturing, distribution, and marketing. The new provisions include, among other things, the authority to issue regulations related to tobacco product manufacturing practice in order to protect the public health and to assure that tobacco products are in compliance with the FD&C Act. Specifically, section 906(e) of the FD&C Act (21 U.S.C. 387f(e)) provides that “in applying manufacturing restrictions to tobacco, the Secretary shall * * * prescribe regulations (which may differ based on the type of tobacco product involved) requiring that the methods used in, and the facilities and controls used for, the manufacture, preproduction design validation (including a process to assess the performance of a tobacco product), packing, and storage of a tobacco product conform to current good manufacturing practice, or hazard analysis and critical control point methodology.”
CTP is instituting Tobacco Product Manufacturing Facility Visits to provide FDA staff with the opportunity to:
• Observe tobacco product manufacturing operations—from the receipt of raw materials to the distribution of finished products, and
• Learn about the manufacturing practices and processes unique to your facility and regulated tobacco products.
This program will also inform FDA staff as they implement the tobacco provisions of the FD&C Act.
In this program, groups of FDA staff plan to observe the following facilities and their operations:
• Manufacturing facilities, including facilities that process, package, label, and distribute different types of regulated tobacco products (cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco products),
• Laboratory facilities that perform tobacco testing (whether third-party or in-house),
• Manufacturing facilities for components, parts, and accessories (including, but not limited to, cigarette paper, tipping paper, filters), and
• Manufacturing facilities for materials used for further processing in finished tobacco products (including, but not limited to, flavors, casings).
Please note that Tobacco Product Manufacturing Facility Visits are not intended to include or replace official FDA inspections of facilities to determine compliance with the FD&C Act; rather, these facility visits are meant to educate FDA staff and improve their understanding of the tobacco industry and its manufacturing operations.
CTP plans to select one or more of each of the following:
• Cigarette manufacturers,
• Cigarette tobacco and roll-your-own tobacco manufacturers,
• Smokeless tobacco manufacturers,
• Tobacco laboratories,
• Importers of finished tobacco products,
• Distributors and wholesalers of regulated tobacco products,
• Manufacturers of components, parts, accessories, and
• Manufacturers of materials used for further processing in finished tobacco products.
Final site selections will be based on the availability of CTP funds and resources for the relevant fiscal year, as well as the following factors, as applicable: (1) Compliance status of the requesting facility and affiliated firm; (2) whether the requesting facility is in arrears for user fees; and (3) whether the requesting facility will be engaged in active manufacturing or processing during the proposed time of the visit. All travel expenses associated with Tobacco Product Manufacturer Facility Visits will be the responsibility of CTP.
The request for participation should include the following identification information:
• The name and contact information (including address, phone number, and email) of your point of contact for the request,
• The physical address(es) of the site(s) for which you are submitting a request,
• The type of processes (
• The type of tobacco products tested, processed, or manufactured at your facility, and
• A proposed program agenda.
Requests are to be identified with the docket number found in brackets in the heading of this document. Requests received by the Agency are available for public examination in the Division of Dockets Management (see
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 Environmental Health Sciences (NIEHS), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
To request more information on the project or to obtain a copy of the data collection plans and instruments, contact Dr. Dale P. Sandler, Chief, Epidemiology Branch, NIEHS, Rall Building A3-05, PO Box 12233, Research Triangle Park, NC 27709, or call non-toll free number (919)-541-4668 or Email your request, including your address to:
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institute on Drug Abuse (NIDA), the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request to review and approve the information collection listed below. This proposed information collection was previously published in the
This is a large national longitudinal cohort study on tobacco use behavior and health in the United States conducted under the direction of the National Institutes of Health (NIH) National Institute on Drug Abuse (NIDA) and in partnership with the Food and Drug Administration (FDA). The field test is scheduled to begin in the fall of 2012 and the baseline collection is scheduled to begin in the fall of 2013. Using annual interviews and the collection of biospecimens from adults, the PATH study is designed to establish a population-based framework for monitoring and evaluating the behavioral and health impacts of regulatory provisions by FDA as it meets its mandate under the Family Smoking Prevention and Tobacco Control Act (FSPTCA) to regulate tobacco-product advertising, labeling, marketing, constituents, ingredients, and additives. These regulatory changes are expected to influence tobacco-product risk perceptions, exposures, and use patterns in the short term, and to reduce tobacco-related morbidity and mortality in the long term. By measuring and accurately reporting tobacco product use behaviors and health effects associated with these regulatory changes, this study will provide an empirical evidence base to inform the development,
Division of the National Toxicology Program (DNTP), National
Notice.
The peer review meeting will take place October 1, 2012, 1:00 to 5:00 p.m. Eastern Daylight Time (EDT) and October 2, 2012, from 8:30 a.m. until adjournment, approximately 5 p.m. Two days are set aside for the meeting; however, it may adjourn sooner if the panel completes its peer review of the draft monograph.
The panel will peer review the Draft NTP Monograph on Developmental Effects and Pregnancy Outcomes Associated with Cancer Chemotherapy Use during Pregnancy, prepared by the Office of Health Assessment and Translation (OHAT), DNTP. Cancer diagnosed during pregnancy affects approximately 1/6000 to 1/1000 women. Treatment for cancer frequently involves chemotherapy, and nearly all chemotherapeutic agents are known developmental toxicants in laboratory animals. OHAT has prepared a comprehensive draft NTP Monograph that summarizes the effects on development and pregnancy outcomes of gestational exposure to 52 cancer chemotherapeutic agents, individually and/or in combination therapy as reported in the peer-reviewed literature. The draft monograph also provides information on seven frequently diagnosed cancers in pregnant women and on mechanism of action, placental and breast milk transport, and laboratory animal developmental toxicology for the more frequently used chemotherapeutic agents. The overall goal of the monograph is to serve as a resource for the medical communities and their patients.
The preliminary agenda and draft monograph should be posted on the NTP Web site (
The NTP invites written comments on the draft monograph, which should be received by September 14, 2012, to enable review by the peer review panel and NTP staff prior to the meeting. Persons submitting written comments should include their name, affiliation, mailing address, phone, email, and sponsoring organization (if any) with the document. Written comments received in response to this notice will be posted on the NTP Web site, and the submitter will be identified by name, affiliation, and/or sponsoring organization.
Public input at this meeting is also invited, and time is set aside for the presentation of oral comments on the draft monograph. In addition to in-person oral comments at the meeting at the NIEHS, public comments can be presented by teleconference line. There will be 50 lines for this call; availability will be on a first-come, first-served basis. The available lines will be open from 1-5 p.m. EDT on October 1 and from 8:30 until adjournment on October 2, although oral comments will be received only during the formal public comment period indicated on the preliminary agenda. Each organization is allowed one time slot. At least 7 minutes will be allotted to each speaker, and if time permits, may be extended to 10 minutes at the discretion of the chair. Persons wishing to make an oral presentation are asked to register online at
The NIEHS/DNTP established OHAT to serve as an environmental health resource to the public and to regulatory and health agencies. This office conducts evaluations to assess the evidence that environmental chemicals, physical substances, or mixtures (collectively referred to as “substances”) cause adverse health effects and provides opinions on whether these substances may be of concern given what is known about current human exposure levels. OHAT also organizes workshops or state-of-the-science evaluations to address issues of importance in environmental health sciences. OHAT assessments are published as NTP Monographs. Information about OHAT is found at
NTP panels are technical, scientific advisory bodies established on an “as needed” basis to provide independent scientific peer review and advise the NTP on agents of public health concern, new/revised toxicological test methods, or other issues. These panels help ensure transparent, unbiased, and scientifically rigorous input to the program for its use in making credible decisions about human hazard, setting
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301-496-7057; fax: 301-402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
• Biological tissue visualization in 3D
• Research uses
• User friendly
• Intuitive interface
1. Maciejewski R,
2. Zhou J, Takatsuka M. Automatic transfer function generation using contour tree controlled residue flow model and color harmonics. IEEE Trans Vis Comput Graphics. 2009 Nov-Dec;15(6):1481-8. [PMID 19834224]
3. Röttger S,
Available from NHGRI are human renal epithelial tubular cells isolated from cystinosis patient samples. These cells may be useful for studying the biology of cystinosis, as well as the metabolic role of the lysosomal cystine transporter; they may also be useful for the development of screening assays for potential therapeutic agents for cystinosis.
• Use in studies focused on cystinosis and lysosomal metabolism
• Use in assays for high throughput screening of potential therapeutic agents
• Substance abuse
• Drug abuse
• Alcoholism
• Behavioral modification
• Smoking cessation
• Pain management
• Low-cost mobile treatment mechanism
• Provides personalized feedback to patients at the time and place they choose
• Proven usability in prior clinical studies
1. Vahabzadeh M,
2. Lin JL,
3. Vahabzadeh M,
Additionally, cells comprising the GFP-based construct may be useful in high-throughput drug screening as a means to: (1) identify potential therapeutic targets of RPE degenerative diseases such as AMD, and (2) evaluate initial toxicity of candidate drugs in RPE cells.
• Fluorescence based marker for detecting and purifying differentiated RPE cells
• Potential use in high throughput drug screening
• Prototype
• In vitro data available
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 National Advisory Mental Health Council.
The meeting will be open to the public as indicated below, 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.
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.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this
In the interest of security, 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.
Information is also available on the Institute's/Center's home page:
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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the National Advisory Neurological Disorders and Stroke Council.
The meeting will be open to the public as indicated below, 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.
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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
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.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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 proposal and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposal, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
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 materials, 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 President's Cancer Panel.
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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
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.
Coast Guard, DHS.
Notice of Federal Advisory Committee Meeting.
The Towing Safety Advisory Committee (TSAC) will meet on September 19 and 20, 2012. On September 19, the committee will meet to discuss administrative matters and then recess for the separate but concurrent meetings of the four subcommittees, “Recommendations for the Prevention of Towing Vessel Crewmember Falls Overboard”, “Review and recommendations for the revision of NVIC 1-95, Voluntary Training Standards for Entry-Level Personnel on Towing Industry Vessels”, “Recommendations for the Enhancement of Towing Vessel Stability” and “Recommendations for Safety Standards of Portable Facility Vapor Control Systems Used for Marine Operations.” The committee will reconvene on September 20, 2012. The meetings of the TSAC on both days and the meeting of the subcommittees are open to the public.
On Wednesday, September 19, 2012, from 8:30 a.m. to noon, the TSAC will meet to discuss administrative matters, and from 1:30 to 5 p.m. the four subcommittees identified in the “Agenda” will meet. On Thursday, September 20, 2012, the TSAC will meet from 8:30 a.m. to 4:30 p.m. Please note that these meetings may close early if the committee has completed its business. Oral comments may be made at the September 20 meeting. Written comments must be submitted no later than September 10, 2012 by using one of the methods listed below.
The meetings will be held at the Federal Center South GSA Facility, 4735 East Marginal Way South, Seattle, WA 98134.
If you are planning to attend the meeting, you will be required to pass through a security checkpoint. You will be required to show state-issued photo identification. Please arrive at least 30 minutes before the planned start of the meeting in order to pass through security.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the individuals listed in the
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the “Agenda” section below. Written comments must be identified by Docket No. USCG-2012-0770 and submitted by
•
•
•
•
• To avoid duplication, please use only one of these methods.
Commander Rob Smith, Designated Federal Officer (DFO) or Mr. Patrick Mannion, Alternate Designated Federal Officer (ADFO), TSAC; U.S. Coast Guard Headquarters, CG-OES-2, Vessel and Facilities Operating Standards Division; telephone (202) 372-1439, fax (202) 372-1926, or email at:
Notice of this meeting is given under the
On September 19, 2012, from 8:30 a.m. to noon, the TSAC will meet to discuss administrative matters such as logistical support and review the committee charter and bylaws. The TSAC will recess at noon and starting at 1:30 p.m. the following four subcommittees will convene to discuss work remaining on their open task statements. These subcommittees will conclude their meetings at 5 p.m.
• Recommendations for the Prevention of Towing Vessel Crewmember Falls Overboard.
• Review and recommendations for the revision of NVIC 1-95, Voluntary Training Standards for Entry-Level Personnel on Towing Industry Vessels.
• Recommendations for the Enhancement of Towing Vessel Stability.
• Recommendations for Safety Standards of Portable Facility Vapor
On September 20, 2012, at 8:30 a.m., the TSAC will reconvene. The committee will review and discuss the four open Task Statements currently before the committee. The TSAC will receive briefings from the Task Statement subcommittees to inform the TSAC of their work, to review and discuss the research, and to determine the disposition of the Task Statements. Presentations and discussions will include the following subjects:
• Presentation from the Towing Vessel Stability Casualty Data subcommittee and discussion of the task “Towing Vessel Stability;”
• Presentation from the Towing Vessel Crewmember Competencies subcommittee and discussion of the task Towing Vessel Crewmember Competencies;
• Presentation from the Falls Overboard subcommittee and discussion of the task “Prevention of Falls Overboard, Towing Vessels;”
• Presentation on Task Statement “Recommendations for Safety Standards of Portable Facility Vapor Control Systems Used for Marine Operations.”
• Presentation of Coast Guard initiative for use of automated identification systems for towing vessels during tow reconfiguration;
• Presentation of potential Task Statement “Recommendations to Improve Operational, Structural or Other Standards to Enhance Fire Prevention and Containment Aboard Towing Vessels.”
• Presentation of potential Task Statement “Recommendations for Inspected Towing Vessel Manning Scales for Both Domestic and International Operations”;
• Report from the Supervisor, Towing Vessel National Center of Expertise.
An opportunity for oral comments by the public will be provided during the meeting on September 20, 2012, as the final agenda item. Speakers are requested to limit their comments to 5 minutes. Please note that the public oral comment period may end before 4:30 p.m. if all of those wishing to comment have done so.
Minutes from the meeting will be available for the public review and copying within 30 days following the close of the meeting and can be accessed from the Coast Guard Homeport Web site
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Builders who request changes to HUD's accepted drawings and specifications for proposed construction properties as required by homebuyers or determined by the builder use the information collection. The lender reviews the changes and amends the approved exhibits. These changes may affect the value shown on the DUD commitment. HUD requires the builder to use form HUD-92577 to request changes for proposed substantial rehabilitation construction properties (203k program properties). HUD's collection of this information is for the purpose of ascertaining that HUD does not insure a mortgage on property that poses a risk to health or safety of the occupant.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number (2502-0117) and should be sent to: Reports Liaison Officer, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410, Room 9120 or the number for the Federal Information Relay Service (1-800-877-8339).
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; email Colette Pollard at Colette.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The Rental Assistance Demonstration allows Public Housing and Moderate Rehabilitation (Mod Rehab) properties to convert to long-term Section 8 rental assistance contracts; and Rent Supplement (Rent Supp), Rental Assistance Payment (RAP) and Mod Rehab properties upon contract expiration or termination, to convert Tenant Protection Vouchers (TPVs) to Project Based Vouchers (PBVs). Participation in the initiative will be voluntary; the attached supporting contracts and processing requirements will be used to process and complete the conversion process for Public Housing, Mod Rehab, Rent Supp and RAP.
Interested persons are invited to submit comments regarding this proposed information collection. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Colette Pollard., Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4160, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email Ms. Pollard at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202-402-4109, (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339.
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This Notice is submitting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility and clarity of information to be collected; and, (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology; e.g. permitting electronic submission of responses.
This Notice also lists the following information:
To review draft versions of the processing requirements and the contractual documentation please visit the RAD Web site:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice of revised information collection.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The purpose of this notice is to solicit public comment on a revised Word version of HUD-52737,
The Native American Housing Assistance and Self Determination Act (NAHASDA) requires recipients (tribes and tribally designated housing entities) to submit specific information that is necessary for the implementation and evaluation of low income housing programs using Indian Housing Block Grant funds (IHBG). Recipients of IHBG funds are required to submit the IHP/APR annually. In addition to the IHP/APR, each year recipients may submit a
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Colette Pollard, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4160, Washington, DC 20410-5000; telephone 202-402-3400, (this is not a toll-free number) or email Ms. Pollard at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202-402-4109, (this is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
Indian tribes, Alaska Natives, Native Hawaiians, or tribally designated housing entities that receive IHBG funds are required annually to submit HUD-52737 that consists of two components: the Indian Housing Plan (IHP) component and the Annual Performance Report (APR) component.
The IHP is required by Section 102 of the Native American Housing Assistance and Self-Determination Act (NAHASDA) and describes the eligible IHBG-funded, affordable housing activities the recipient plans to conduct for the benefit of low and moderate income tribal members and identifies the intended outcomes and outputs for the upcoming 12-month year. The recipient submits the IHP at least 75 days prior to the beginning of its 12-month program year. HUD conducts a limited review of the IHP to determine that the planned activities are in compliance with NAHASDA requirements, as defined at 24 CFR Part 1000.
At the end of the 12-month period, the recipient submits the APR that is required by Section 404 of NAHASDA and describes (1) The use of grant funds during the prior 12-month period; (2) the actual outcomes and outputs achieved; (3) program accomplishments; and (4) jobs supported by IHBG-funded activities. HUD uses the information in the APR to review the recipient's progress in implementing the IHP, verify whether the activities are eligible and to determine if the recipient has the capacity to continue implementing the activities described in the IHP in a timely manner. The information in the APR also will be used to provide Congress, stakeholders, and other interested parties with information on how the IHBG funds are being used to meet affordable housing needs within Native American communities.
The IHP/APR is currently available in a Word version. With this submission HUD intends to make available a revised Word version, an Excel version, and a version on HUD's Energy and Performance Information Center (EPIC) Web site. All three versions of the IHP/APR request the same information and a recipient may elect to submit to HUD either the Word, Excel, or EPIC versions; however, the Excel and EPIC versions are preferred because of their automated capabilities and reduced burden. The Word, Excel, and EPIC versions differ from the current version of HUD-52737 with the elimination of Line 1 (Planned Grant-Based Budget for Eligible Programs) in Section 5 (Budgets) because collection of this information served no valid purpose.
Participants in the IHBG program are responsible for notifying HUD of changes to the Formula Current Assisted Stock (FCAS) component of the IHBG formula. HUD is notified of changes in the FCAS through a
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
In accordance with the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-05, approved February 17, 2009) (Recovery Act), and implementing guidance of the Office of Management and Budget (OMB), this notice advises that certain exceptions to the Buy American requirement of the Recovery Act have been determined applicable for work using Capital Fund Recovery Formula and Competition (CFRFC) grant funds. Specifically, exceptions were granted to the Columbia Housing Authority for the purchase and installation of handrail brackets, door stops and 4-prong appliance power cords for the Village at River's Edge project, and to the Hammond Housing Authority for the purchase and installation of tile flooring for its Hubert H. Humphrey Hi-Rise project.
Donald J. LaVoy, Deputy Assistant Secretary for Office of Field Operations, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4112, Washington, DC 20410-4000, telephone number 202-402-8500 (this is not a toll-free number); or Dominique G. Blom, Deputy Assistant Secretary for Public Housing Investments, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4130, Washington, DC, 20410-4000, telephone number 202-402-8500 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Section 1605(a) of the Recovery Act provides that none of the funds appropriated or made available by the Recovery Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. Section 1605(b) provides that the Buy American requirement shall not apply in any case or category in which the head of a Federal department or agency finds that: (1) Applying the Buy American requirement would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality, or (3) inclusion of iron, steel, and manufactured goods will increase the cost of the overall project by more than 25 percent. Section 1605(c) provides that if the head of a Federal department or agency makes a determination pursuant to section 1605(b), the head of the department or agency shall publish a detailed written justification in the
In accordance with section 1605(c) of the Recovery Act and OMB's implementing guidance published on April 23, 2009 (74 FR 18449), this notice advises the public that the following exceptions were granted:
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
On April 10, 2012, HUD announced increases to mortgage insurance premiums (MIPs) for certain Federal Housing Administration (FHA) Multifamily Housing, Health Care Facilities, and Hospital Mortgage Insurance programs for commitments to be issued or reissued in FY 2013, and solicited public comment on the announced increases. In the April 2012, notice, HUD submitted that the MIP increases would not only provide additional protection for the General Insurance and Special Risk Insurance (GI/SRI) fund and increase receipts to the Treasury, but would also encourage private lending to return to the market by ensuring FHA is not under-pricing its risk. The April 2012 notice also announced that a positive credit subsidy obligation will not be required in FY 2013 for loans under any of the active mortgage insurance programs for multifamily housing or health care facilities.
This notice announces that the proposed MIP increases will be implemented in FY 2012. This notice also addresses the public comments received in response to the announced MIP increases.
Dan Sullivan, Acting Director, Office of Multifamily Housing Development, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-8000; telephone: 202-402-6130 (this is not a toll-free number). Hearing- or speech-impaired individuals may access these numbers through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).
In accordance with HUD's mortgage insurance regulation at 24 CFR 207.254, HUD solicited public comment on changes in MIP for its multifamily mortgage insurance programs before the changes are adopted for a new fiscal year. HUD's regulation at 24 CFR 207.254 provides as follows:
Notice of future premium changes will be published in the
In accordance with this regulation, HUD published on April 10, 2012, at 77 FR 21580, a notice that announced changes for FY 2013 in the MIP for programs authorized under the National Housing Act (the Act) (12 U.S.C. 1709(c)(1)), specifically for certain FHA Multifamily Housing, Health Care Facilities, and Hospital Mortgage Insurance programs for commitments to be issued or reissued in FY 2013. The April 2012 notice stated that the MIP for market-rate New Construction/Substantial Rehabilitation loans under Sections 207, 213, 220, 221(d)(4), 231, 232, and 242 would be increased by 20 basis points, and Section 223(a)(7) loans would be increased by 5 basis points; with a 15 basis point increase for all other market-rate multifamily housing, health care facility, and hospital loans. The April 2012 notice included a chart that set out for each program for which an MIP increase was announced the current basis points and the basis points that would apply in 2013. (See April 10, 2012, notice at 77 FR 21581)
The April 2012 notice clarified that these changes would not apply to loans combined with low-income housing tax credits (LIHTCs), other affordable housing loans for HUD-assisted properties, or loans insured under FHA's Risk Sharing programs. The term “other affordable housing loans for HUD-assisted properties” includes those properties with an active project-based Section 8 contract covering any of its units.
The April 2012 notice further clarified that positive credit subsidy will no longer be required for loans under any of the active mortgage insurance programs for multifamily housing or health care facilities. Beginning on October 1, 2012, commitments issued for Section 223(d) operating loss loans for health care facilities and Section 241(a) supplemental loans to FHA-financed multifamily housing will be reported under the budget risk category of their respective, primary FHA mortgages, which will generate negative credit subsidy in FY 2013. In addition, the Department will suspend issuance and reissuance commitments under two other programs that had previously required positive credit: Section 221(d)(3) multifamily housing loans for projects with non-profit sponsors or for Section 223(d) operating loss loans to multifamily housing projects with a primary FHA mortgage.
The April 2012 notice announced that the changes in MIP would be effective and apply to any Firm Commitments issued or reissued after October 1, 2012.
The public comment period on the April 10, 2012, notice closed on May 10, 2012, and HUD received 30 public comments by the close of the public comment period. Comments were submitted by mortgage lenders, organizations representative of the health care industry and of the home building industry, private citizens, and other interested parties. All public comments can be found on
Commenters requested that HUD provide data to the industry that documents the need to raise the MIP.
Commenters stated that that the President's budget for FY 2012 [in HUD's section of the budget] assumes continued negative credit subsidy for these programs, and they were therefore projected to generate income for the U.S. Treasury prior to April 10, 2012, notice. The commenters concluded that the proposed increases are unnecessary and are a mere attempt to generate additional revenue for the U.S. Treasury. The commenters stated that should HUD find it imperative to increase the MIPs for FY 2013, proceeds from the revenue generated by such increases be used exclusively for the sole benefit of the multifamily and healthcare mortgage insurance program.
Two commenters presented a table comparing 2012 default rates against 2013 default rates under specific housing programs (e.g., multifamily development, apartment refinances, health care & nursing homes, health care refinances, and hospitals). The table presented by the commenters reflects that HUD has reduced default rates for the loan program; consequently, reducing the amount of funds going into the reserves for the GI/SRI fund creating less protection for these programs. The commenters requested that HUD to demonstrate how such reductions will affect the reserves in the GI/SRI funds.
A commenter addressed specifically the Section 232 program, stating that the growth and successes of the Section 232 loans (without increases) are a source of stability for the FHA GI/SRI fund, and given this, the commenter finds HUD's announced MIP increases for the Section 232 program “baffling”. The commenter refuted HUD claim that the “modest” increases in premiums will have little to no impact on program participants. According to the commenter, the real cost to a Section 232 loan of $7 million would cost an institution more than $10,000 in the first year under the proposed 20 basis points increase. Commenter stated that increased MIP will increase the costs of HUD financing by 30-40 percent for Section 242 and 232 programs; hence, putting the program out of reach for many community hospitals in need of affordable financing, and hampering necessary renovations, refinancing or new construction projects while threatening access to high quality health care services for those in need. Commenter stated that rather than increasing MIPs at the expense of seniors or those with healthcare needs, HUD consider an alternative approach that would increase revenue and incentivize better underwriting and improved operations—risk based premium pricing.
Other commenters focused on HUD's healthcare programs more broadly and presented what they identified as “actual/projected” credit scorings which indicates that HUD's healthcare programs have some of the best credit scoring for HUD, that are well within the mandates set forth by Federal Credit Reform Act of 1990 (FCRA) (2 U.S.C. 621
The modest increase will ensure that the MIPs are priced appropriately to compensate for FHA's risk, consistent with current and potentially volatile market conditions. The MIP increase is in line with the requirement to responsibly align pricing with risk tolerance in administering FHA programs. The modest MIP increase will address potential risk attributed to the shift in portfolio from a primarily subsidized stock with small loans, to a primarily market rate portfolio with larger average loan sizes and the attendant risk of single point failures. The modestly increased premiums in addition to already record-low interest rates, will not contribute significantly to project costs. HUD will continually monitor interest rates, and will price the MIP accordingly to adjust to future changes.
This change is forward-looking. HUD agrees that the risk model is working appropriately. The decision to increase MIP is not being made due to technical or actuarial defects of the economic model, but rather reflects the administration's concern for mitigating potential unforeseen risks, concern that HUD financing not be underpriced and thus discourage recovery of private capital source, and to differentiate between affordable and market rate program requirements.
While it is true that the GI/SRI negative credit subsidy is paid from the loan financing account to the Treasury General Fund, rather than to a dedicated reserve account, the General Fund is also the source of funding for any future upward re-estimates of liability for GI/SRI programs. FHA has permanent indefinite authority to draw from that fund to cover any increases to projected losses. The administration also has an obligation to administer the program within its statutory and regulatory authority, consistent with prudent risk management and risk tolerance.
Other commenters submitted data that suggests that FHA is not crowding out the private sector. The commenters stated that the data they provided reflects that the refinance market for multifamily rental properties was estimated to be approximately $54 billion in FY 2011. Sixty percent was financed by Freddie Mac and Fannie Mae in FY 2011. FHA's 223(f) program completed $3.5 billion or 6.5 percent of the market in FY 2011. In FY 2011, new construction was 180,000 new starts and FHA financed 30,483 units in both new and rehab units. The commenters conclude that, “this represents 16.9 percent of the market. This percentage is by no means enough to crowd out the private sector.” The same commenters disagreed that raising the MIP will indeed ensure that FHA is not under-pricing its risk. The commenters state that the current MIP is set at a level to break-even (e.g., no credit subsidy is required) providing only a minimal amount of excess income.
A commenter provided several charts illustrating the countercyclical nature of the FHA business; share of the new construction market that FHA occupies from FY 2008 through FY 2011; and that FHA financing serves as the niche that local banks and thrifts have retreated from in recent years. Another commenter presented data that illustrated that in 2011 banks and other private funding sources provided $2.9 billion in healthcare lending, approximately 300 percent more than the amount funded the previous year. The commenter summarized its comment with the statement that, based upon its findings, there is no reasonable measure that HUD has “cornered the market.”
Other commenters stated that as conventional lenders return to the market, FHA's market share has declined due to financing sources being more flexible and less costly to pursue. The commenters urged HUD to provide its estimates of how much additional private capital will participate should the MIP increases go into effect. Certain commenters referenced data provided by the Mortgage Bankers Association (MBA) that they state support their claim that origination of Fannie Mae, Freddie Mac, and FHA all reached record volumes in 2011, yet its collective share of the market declined in 2011. Loans originated by this group accounted for 57 percent of the market in 2011. The commenters stated that other private capital sources have returned to the market without the incentive of an MIP increase for FHA. The commenters added that the data from the MBA reports, suggests that HUD has done a “stellar job” of assessing risk and underwriting loans; whereby, raising questions [within the industry] as to HUD's true rational for this notice. The commenters also submitted a report prepared by the Federal Practice Group, LLC entitled “Analysis of Unassisted Multifamily Housing and Health Care Loans Insured by the Federal Housing Administration” dated November 2011 to further substantiate their claim that FHA is not under-pricing its risk rather HUD is over-pricing its risk.
HUD agrees that FHA's role is to serve as a “counter-cyclical” capital source. In light of record low interest rates, the proposed modest MIP increases are not a barrier to continuing this role. FHA insured financing terms, including with the increased MIP, have not been this favorable in decades, and are materially less expensive than in the years prior to and after the current credit crisis. As stated earlier, HUD will continue to monitor interest rates and their impact on the market, and will adjust its policies accordingly.
A market share of 16.9 percent is much higher than it has been historically. HUD has not represented that it has “cornered the market,” but the increased role that FHA has played in the market in recent years should be temporary. With this decision FHA is moving towards a return to the smaller share of the market it has traditionally occupied.
FHA cannot be compared to Fannie Mae and Freddie Mac. Collectively painting the GSEs and FHA with a broad brush does not reflect the fact that they have different business models. FHA's market share decreased last year, but it is still much higher than it was in 2006 when the MIPs were last increased, closer to 3 percent.
Another commenter stated that the proposed increases in MIPs will be passed through to the tenants residing within the property insured by the program(s); thus requiring the rental units to be raised to cover theses costs.
The commenters stated that HUD has not provided compelling justification for the increases, and urge HUD not to implement these changes at a time when demand for rental housing is increasing and preserving and investing in our stock of rental housing is critical.
In the chart below, this notice announces the MIPs which will be in effect during FY 2013 for the multifamily housing, health care facilities, and hospital mortgage insurance programs authorized under the National Housing Act (12 U.S.C. 1713
The mortgage insurance premiums to be in effect for FHA firm commitments issued or reissued in FY 2013 are shown in the chart below. Firm Commitments for applications received prior to June 1, 2012, will be subject to the MIP rates applicable in Fiscal Year 2012 (Current Basis Points in the following chart) even if issued after October 1, 2012.
Positive credit subsidy will no longer be required for loans under any of the active mortgage insurance programs for multifamily housing or health care facilities. Beginning on October 1, 2012, commitments issued for Section 223(d) operating loss loans for health care facilities and Section 241(a) supplemental loans to FHA-financed multifamily housing will be reported under the budget risk category of their respective, primary FHA mortgages, all of which will generate negative credit subsidy in FY 2013. In addition, the Department will suspend issuance and reissuance commitments under two other programs that had previously required positive credit: Section 221(d)(3) multifamily housing loans for projects with non-profit sponsors or for Section 223(d) operating loss loans to multifamily housing projects with a primary FHA mortgage.
Office of the General Counsel, HUD.
Notice.
This notice advises that HUD's Office of General Counsel (OGC) is moving its final effective date of a new system of records for the OGC E-Discovery Management System until after the opportunity for further comment is provided to the public.
For inquiries pertaining to Privacy Act records, contact Donna Robinson-Staton, Chief Privacy Officer, U.S. Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410 (Attention: Capitol View Building, 4th Floor) telephone number (202) 402-8073 (this telephone number is not toll free). A telecommunications device for hearing- and speech-impaired persons (TTY) is available by calling the Federal Relay Service's toll-free telephone number (800) 877-8339.
Pursuant to the Privacy Act of 1974, as amended (5 U.S.C. 552a), HUD published in the
The July 17, 2012, notice solicited public comment on the new record system for OGC-EDMS, which was detailed in the July 17, 2012, notice, for a period of 30 days. The notice advised that EDMS would carry a final effective date of August 16, 2012, unless HUD received comments which would result in a contrary determination. HUD anticipates receiving public comments prior to August 16, 2012, but even in the absence of comment, HUD determined, upon further review of the system, to make certain clarifications and solicit public comment for another 30-day period. Accordingly, following conclusion of the comment period on August 16, 2012, HUD will consider any public comments related to the July 17, 2012, notice, and subsequently publish another notice. The second notice to be published on the new record system for OGC-EDMS will make the clarifications that HUD believes need to be made, respond to any public comments received by August 16, 2012, make any additional changes that may be recommended by commenters and with which HUD agrees, and solicit public comment for an additional period of 30-days.
5 U.S.C. 552a; 88 Stat. 1896; 42 U.S.C. 3535(d).
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, announce the availability of a draft comprehensive conservation plan (CCP) and an environmental assessment (EA) for public review and comment. The draft CCP/EA describes our proposal for managing the Texas Mid-Coast National Wildlife Refuge Complex for the next 15 years. The Complex, which includes Brazoria, San Bernard, and Big Boggy National Wildlife Refuges (NWRs), is located approximately 50 miles south of Houston, Texas.
To ensure consideration, please send your written comments by August 15, 2012. We will announce upcoming public meetings in local news media.
You may submit comments or requests for copies or more information on the Draft CCP/EA by any of the methods listed below. You may request hard copies or a CD-ROM of the documents. Please contact Jennifer Sanchez, Project Leader, or Carol Torrez, Lead Planner/R2 NWRS NEPA Coordinator.
Jennifer Sanchez, Project Leader, Texas Mid-Coast National Wildlife Refuge Complex, CCP—Project, 5247 CR 316, Brazoria, TX 77422; phone: 979-964-4011; fax: 979-964-4021.
With this notice, we continue the CCP process for the Texas Mid-Coast NWR Complex. We started this process through a notice in the
The Complex is located along the upper Texas Gulf Coast, approximately 50 miles south of Houston, Texas. It is comprised of three refuges: Brazoria NWR, which was established in 1966, and encompasses 44,414 acres; San Bernard NWR, which was established in 1968, and encompasses 52,400 acres; and Big Boggy NWR, which was established in 1983, and encompasses 4,526 acres. These lands provide a vital complex of salt and freshwater marshes, sloughs, ponds, coastal prairies, and bottomland hardwood forests that provide habitat for a wide variety of resident and migratory wildlife.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Refuge Administration Act.
Formal scoping began with publication of a notice of intent to prepare a comprehensive conservation plan and environmental assessment (EA) in the
An ecoregion-wide coordination meeting was held at the Complex's Discovery Center on December 2, 2009, to gain a better understanding of the issues within the Gulf Coast Prairies and Marshes Ecoregion, where the Complex is located, and to determine the Complex's role in addressing issues impacting fish, wildlife, and their habitats within the larger landscape. In February 2010, the Complex met with representatives from the Texas Parks and Wildlife Department to discuss their concerns regarding past management, future management, and issues common to both agencies.
Additional public scoping for the Land Protection Planning process was conducted in January 2012. Three open house meetings were held to provide information on the proposed expansion and respond to questions and concerns.
The feedback received at the conclusion of the public involvement period identified numerous concerns from a variety of stakeholders. These concerns were organized by five broad issue categories and one administrative category: Ecoregion, Habitat, Wildlife, Visitor Services, and Facilities/Infrastructure Management.
During the public scoping process with which we started work on this draft CCP, we, other governmental partners, Tribes, and the public, raised multiple issues. Our draft CCP addresses them. A full description of each alternative is in the EA. To address these issues, we developed and evaluated the following alternatives, summarized below.
In addition to any methods in
• Texas Mid-Coast National Wildlife Refuge Complex Headquarters Office, CR 316, Brazoria, TX, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday.
• Our web site:
• At the following public libraries:
We consider comments substantive if they:
• Question, with reasonable basis, the accuracy of the information in the document;
• Question, with reasonable basis, the adequacy of the environmental assessment (EA);
• Present reasonable alternatives other than those presented in the EA; and/or
• Provide new or additional information relevant to the assessment.
After this comment period ends, we will analyze the comments and address them in the form of a final CCP and finding of no significant impact.
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.
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Wells Field Office, Elko, Nevada, intends to prepare an Environmental Impact Statement (EIS) and an associated Resource Management Plan (RMP) amendment for a proposed privately operated wild horse eco-sanctuary and by this notice, is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the EIS and associated RMP amendment. Comments on issues may be submitted until September 14, 2012. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local news media, mailings to interested individuals, and the BLM Elko District Web site at:
You may submit comments on issues and planning criteria related to the EIS and RMP amendment by any of the following methods:
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Documents pertinent to this proposal may be examined at the BLM Elko District Office, 3900 E. Idaho Street, Elko, Nevada, during regular business hours of 7:45 a.m. to 4:30 p.m., Monday through Friday, except holidays. Pertinent documents are also available on-line at:
For further information or to have your name added to our mailing list, contact Judy May, resource assistant, BLM Wells Field Office, telephone: 775-753-0267; address: 3900 East Idaho Street, Elko, NV 89801; email:
This document provides notice that the BLM Wells Field Office, Elko, Nevada, intends to prepare an EIS with an associated RMP amendment to the Wells RMP, and announces the beginning of the scoping process and seeks public input on issues and planning criteria. The planning area is located in Elko County, Nevada, and encompasses approximately 510,000 acres of public land. The organization Saving America's Mustangs (SAM) proposes to establish a privately operated eco-sanctuary to accommodate up to 900 non-reproducing wild horses (all one sex or sterilized) on a mixture of public and private lands in Elko County, Nevada, about 25 miles southeast of Wells. The proposed eco-sanctuary is in response to the BLM's request for applications for funding (Funding Opportunity L11AS0043) to assist in the development of a Wild Horse Partnership for an Eco-Sanctuary on Public and Private Land. Preliminarily, the BLM expects that the EIS will address the impacts of the proposed eco-sanctuary and reasonable alternatives to that proposal, and an RMP amendment that may: (1) Adjust the boundaries and management objectives of existing wild horse herd management areas (HMAs) within or near the proposed eco-sanctuary; and (2) reduce and potentially eliminate livestock grazing within the portion of the Spruce Allotment east of Highway 93. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EIS. At present, the BLM has identified the following preliminary issues:
(a) Potential effects to archaeological resources.
(b) Potential effects to greater sage-grouse and other sensitive species.
(c) Potential effects to important elk, mule deer, and other wildlife habitats.
(d) Ability to meet standards for rangeland health.
(e) Ability to manage healthy wild horse populations within the eco-sanctuary.
(f) Ability to provide public access for recreational purposes.
(g) Potential effects of reducing public lands available for livestock grazing.
(h) Ability to manage non-reproducing herd.
Preliminary planning criteria for the RMP amendment include:
1. Any amendment to the Wells RMP will comply with FLPMA (43 U.S.C 1701) and the BLM's land use planning regulations (43 CFR 1600).
2. Public participation would be encouraged throughout the process. The Wells Field Office managers and interdisciplinary team members will work cooperatively with the State of Nevada, tribal governments, county and municipal governments, other Federal agencies, local resource advisory councils, appellants, affected permittees, and any other interested groups, agencies, and individuals.
3. The EIS will comply with NEPA (42 U.S.C. 4332
4. Any amendment to the Wells RMP will appropriately recognize the State's authority to manage wildlife and water.
5. Any amendment to the Wells RMP will recognize valid existing rights.
6. The State Historic Preservation Officer (SHPO) will be consulted under the NHPA and kept involved throughout the planning process, consistent with the National Programmatic Agreement (February 2012) and the State of Nevada Protocol Agreement between the BLM
7. The BLM will address transportation and access within the planning area, if appropriate, to meet the objectives identified for the eco-sanctuary.
8. Existing planning decisions in the Wells RMP not modified by this amendment would remain valid.
9. All proposed management activities, including adjusting wild horse levels would be based upon current scientific information, and research and technology, as well as existing inventory and monitoring information.
10. Adaptive management principles will be used in development of the plan amendment to provide management direction if additional actions or modified actions would be needed for the protection of wild horses or the sustainability of the land and its resources.
You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the “ADDRESSES” section above. You should submit comments by the close of the 30-day scoping period or within 15 days after the last public meeting, whichever is later.
The BLM will utilize and coordinate the NEPA public participation requirements to assist the agency in satisfying the public involvement requirements under Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470f) pursuant to 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such resources in the context of both NEPA and Section 106 of the NHPA.
The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
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.
The minutes and list of attendees for each scoping meeting will be available to the public and open for 30 days after the meeting to any participant who wishes to clarify the views he or she expressed.
The BLM will evaluate identified issues to be addressed in the plan, and will place them into one of three categories:
1. Issues to be resolved in the plan amendment;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this plan amendment.
The BLM will provide an explanation in the Draft EIS as to why an issue was placed in category two or three. The public is also encouraged to help identify any management questions and concerns that should be addressed in the plan. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
The BLM will use an interdisciplinary approach to develop the plan amendment in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: Wild horse and burro, rangeland management, outdoor recreation, archaeology, wildlife and fisheries, lands and realty, hydrology, soils, sociology, and economics.
40 CFR 1501.7 and 43 CFR 1610.2.
Wells Field Office.
Bureau of Land Management, Interior.
Notice of availability.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD)/Approved Resource Management Plan (RMP) for the Pocatello Field Office located in southeastern Idaho. The Idaho State Director signed the ROD on July 10, 2012, which constitutes the final decision of the BLM and makes the Approved RMP effective immediately.
Copies of the ROD/Approved RMP are available upon request from the Field Manager, Pocatello Field Office, Bureau of Land Management, 4350 Cliffs Drive, Pocatello, Idaho 83204 or at the following Web site:
David Pacioretty, Field Manager, Bureau of Land Management, Pocatello Field Office; telephone 208-478-6340; address 4350 Cliffs Drive, Pocatello, Idaho 83204; email:
The approved RMP was developed with public participation through a collaborative planning process in accordance with the Federal Land Policy and Management Act of 1976, as amended, and the National Environmental Policy Act of 1969, as amended. The Approved RMP addresses management of resources and resource uses on approximately 618,300 acres of public land in the Pocatello Field Office
The preferred alternative as described in the Draft RMP/Environmental Impact Statement (EIS) was carried forward with some modifications into the Proposed RMP/Final EIS published in the
The BLM received two protest letters on the Proposed RMP/Final EIS. The BLM Director denied all protest issues as reported in the Director's Protest Resolution Report which can be reviewed at the following Web site:
No inconsistencies with State or local plans, policies, or programs were identified during the Governor's consistency review of the Proposed RMP/Final EIS. The Approved RMP is essentially the same as Alternative B described in the Proposed RMP/Final EIS with only minor editorial modifications made in preparing the ROD/Approved RMP. The Approved RMP can be accessed at the following Web site:
The ROD/Approved RMP includes an implementation level decision designating travel routes for motorized public use in the following areas: The Soda Hills Management Area, Formation Cave Research Natural Area (RNA), Robbers Roost RNA, and Oneida Narrows. This decision is described in the Comprehensive Trails and Travel Management section of the Approved RMP (Action TM-1.2.11). Any party adversely affected by this implementation level decision may file an appeal within 30 days of publication of this Notice of Availability pursuant to 43 CFR, part 4, subpart E. The appeal should state the specific route(s), as identified in Figures 18, 19, 20 and 21 of the Approved RMP that are being appealed.
The appeal must be filed with the Pocatello Field Manager by mail at the above-listed address. Please consult the appropriate regulations and the ROD/Approved RMP for further appeal information and requirements regarding motorized vehicle route designations.
40 CFR 1505.2 and 43 CFR 1610.5-1.
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW173223 for land in Washakie County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW173224 for land in Washakie County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW173254 for land in Park County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW164514 for land in Big Horn County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW164510 for land in Big Horn County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW164511 for land in Big Horn County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from Nova Leasing, LLC for competitive oil and gas lease WYW175075 for land in Converse County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW164508 for land in Big Horn County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the Class II provisions of Title IV of the Federal Oil and Gas Royalty Management Act of 1982, the Bureau of Land Management received a petition for reinstatement of oil and gas lease NMNM 108040 from the lessees ABO Petro Corp., MYCO Industries, Inc., and OXY Y-1 Co., for lands in Chaves County, New Mexico. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Elizabeth Rivera, Bureau of Land Management, New Mexico State Office, P.O. Box 27115, Santa Fe, New Mexico 87502-0115 or at 505-954-2162. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
No valid lease has been issued that affects the lands. The lessees agree to new lease terms for rentals and royalties of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW173225 for land in Washakie County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre, or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from WYNR, LLC, for competitive oil and gas lease WYW164747 for land in Washakie County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at 307-775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $20 per acre, or fraction thereof, per year and 18
Bureau of Land Management, Interior.
Notice.
The Assistant Secretary for Policy, Management and Budget proposes to extend the duration of Public Land Order (PLO) No. 7032 for an additional 20-year period. PLO No. 7032 withdrew approximately 2,560 acres of public land from settlement, sale, location, or entry under the general land laws, including location and entry, under the United States mining laws, but not from leasing under the mineral leasing laws, to protect the archaeological, historical, and cultural resource integrity of the Paleoindian site known as Mesa Site. This notice gives an opportunity for the public to comment on the proposed withdrawal extension and to request a public meeting.
Comments and requests for a public meeting must be received by November 13, 2012.
Comments and meeting requests should be sent to the Alaska State Director, BLM Alaska State Office, 222 West Seventh Avenue, No. 13, Anchorage, Alaska 99513-7504.
Robert L. Lloyd, BLM Alaska State Office, 907-271-4682 or at the address above. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The withdrawal, created by PLO No. 7032 (59 FR 11196, (1994)), will expire on March 9, 2014, unless extended. PLO No. 7032 is incorporated herein by reference. The Bureau of Land Management (BLM) filed a petition/application to extend PLO No. 7032 for an additional 20-year period. PLO No. 7032 withdrew approximately 2,560 acres of public land from settlement, sale, location, or entry under the general land laws, including location and entry under the United States mining laws, but not from leasing under the mineral leasing laws, to protect a Paleoindian site known as Mesa Site. A complete description, along with all other records pertaining to the extension application, can be examined in the BLM Alaska State Office at the address shown above.
As extended, the withdrawal would not alter the applicability of those public land laws governing the use of land under lease, license, or permit or governing the disposal of the mineral or vegetative resources other than under the mining laws.
The use of a right-of-way, interagency, or cooperative agreement would not adequately protect the Federal interest in the Mesa Site.
There are no suitable alternative sites available that could be substituted for the above described public land, since the Mesa Site is unique.
No water rights would be needed to fulfill the purpose of the requested withdrawal extension.
For a period of 90 days from the date of publication of this notice, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal extension may present their views in writing to the BLM Alaska State Director at the address indicated above. 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. Individual respondents may request confidentiality. If you wish to withhold your name or address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comments. Such requests will be honored to the extent allowed by law. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public inspection in their entirety.
Notice is hereby given that an opportunity for a public meeting is afforded in connection with the proposed withdrawal extension. All interested parties who desire a public meeting for the purpose of being heard on the proposed withdrawal extension must submit a written request to the BLM Alaska State Director within 90 days from the date of publication of this notice. Upon determination by the authorized officer that a public meeting will be held, a notice of the time and place will be published in the
The withdrawal extension proposal will be processed in accordance with the regulations set forth in 43 CFR 2310.4 and subject to Section 810 of the Alaska National Interest Lands Conservation Act (16 U.S.C. 3120).
43 CFR 2310.3-1(b).
National Park Service, Interior.
Notification of Boundary Revision.
Notice is hereby given that, pursuant to 16 U.S.C. 460
National Park Service, Deputy Realty Officer, Northeast Region Land Resources, New England Office, 115 John Street, 5th Floor, Lowell, Massachusetts 01852, at (978) 970-5260.
The effective date of this boundary revision is August 15, 2012.
16 U.S.C. 460
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part an enforcement initial determination (“EID”) of the presiding administrative law judge (“ALJ”) finding a violation of the August 13, 2010 consent order by respondent uPI Semiconductor Corp. (“uPI”) of Hsinchu, Taiwan, and is requesting written submissions regarding certain issues under review and remedy, bonding, and the public interest.
Clint A. Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2310. Copies of all nonconfidential 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 (
The Commission instituted this enforcement proceeding on September 6, 2011, based on an enforcement complaint filed by Richtek Technology Corp. of Hsinchu, Taiwan and Richtek USA, Inc. of San Jose, California (collectively “Richtek”). 76 FR 55109-10. The complaint alleged violations of the August 13, 2010 consent orders issued in the underlying investigation by the continued practice of prohibited activities such as directly importing, offering for sale, and selling for importation into the United States and by knowingly aiding, abetting, encouraging, participating in, or inducing importation and sale in the United States by third parties of DC-DC controllers or products containing the same that infringe one or more of U.S. Patent Nos. 7,315,190 (“the `190 patent”); 6,414,470 (“the `470 patent”); and 7,132,717 (“the `717 patent”); or that contain or use Richtek's asserted trade secrets. The Commission's notice of institution of enforcement proceedings named uPI and Sapphire Technology Limited (“Sapphire”) of Shatin, Hong Kong as respondents.
On April 11, 2012, the Commission issued notice of its determination not to review the ALJ's ID terminating the enforcement proceeding as to Sapphire based on a settlement agreement.
On June 8, 2012, the ALJ issued his EID finding a violation of the August 13, 2010 consent order by uPI. He found that, after issuance of the consent order, certain uPI DC-DC controllers and downstream products containing uPI accused controllers had been imported and/or sold in the United States without Richtek's consent or agreement. He made infringement findings as to certain claims of the `190, the `470, and the `717 patents. He found no misappropriation of Richtek's asserted trade secrets in violation of the consent order with respect to uPI's products developed after the consent order issued. Also, he recommended enforcement measures for uPI's violation that included: (1) Modifying the consent order to clarify that the order applies (and has always applied) to all uPI affiliates; and (2) imposing a civil penalty of $750,000 against uPI. On June 25, 2012, uPI and Richtek each filed a petition for review of the EID; and on July 3, 2012, Richtek, uPI, and the Commission investigative attorney each filed a response to the opposing party's petition.
Upon review of the record and considering the parties' filings, the Commission has determined to review the EID in part. Specifically, the Commission has determined to review the following: the ALJ's finding of infringement of the `470 patent; the ALJ's finding of infringement of the `190 patent; and the ALJ's determination that uPI violated the August 13, 2010 consent order on 75 days.
On review, with respect to violation of the August 13, 2010 consent order, the parties are requested to submit briefing limited to the following issues:
(1) What is the test for determining whether uPI violated the following consent order prohibition: “Knowingly aid, abet, encourage, participate in, or induce importation into the United States, the sale for importation into the United States, or the sale, offer for sale, or use in the United States after importation,” without the consent or agreement of Richtek, any DC-DC controllers or products containing same which infringe the asserted patent claims or are made using Richtek's trade secrets? August 13, 2010 consent order, ¶ A.
(2) Explain whether or not there is a factual basis in the evidentiary record that proves that a violation of the “knowingly aid, abet, encourage, participate in, or induce” prohibition of paragraph A of the August 13, 2010 consent order has occurred in view of the evidence of uPI's efforts to comply with the consent order.
(3) Explain whether or not there is a factual basis in the evidentiary record that proves uPI has violated the following consent order prohibition: “import into the United States, sell for importation into the United States, or sell or offer for sale in the United States after importation” without the consent or agreement of Richtek of any DC-DC controllers or products containing same which infringe the asserted patent claims or contain Richtek's asserted trade secrets. August 13, 2010 consent order, ¶ A.
(4) Please provide, based upon evidence in the record, the specific date(s) upon which an importation or sale in the United States occurred for
In addressing these issues, the parties are requested to make specific reference to the evidentiary record and to cite relevant legal authority. The Commission does not request additional briefing at this time on any other issues under review.
In connection with the final disposition of this investigation, the Commission may revoke the consent order and issue an order excluding the subject articles from entry into the United States.
If the Commission contemplates revoking the consent order and issuing an exclusion order, 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 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 were to revoke the consent order and issue an exclusion order, 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 Commission rule 210.4(f), 19 CFR 210.4(f). Submissions should refer to the investigation number (“Inv. No. 337-TA-698”) 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 unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of 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 of the Commission's Rules of Practice and Procedure, 19 CFR 210.42-46.
By order of the Commission.
Notice is hereby given that on August 9, 2012, a proposed Consent Decree signed by the plaintiff, the United States of America, and the defendants, Icicle Seafoods, Inc., Evening Star, Inc., Icicle Acquisition Subsidiary, LLC, and LFK, Inc., was lodged with the United States District Court for the Western District of Washington.
In this lawsuit the United States sought civil penalties and injunctive relief for defendants' alleged violations of regulations promulgated by the Environmental Protection Agency under Title VI of the Clean Air Act, specifically regulations set forth in 40 CFR part 82, Subpart F. The regulations govern the management and control of ozone-depleting substances used as refrigerants in defendants' vessels and other fish processing facilities. The Consent Decree requires the defendants to pay a civil penalty of $430,000.00 and to perform injunctive relief. To ensure the defendants' compliance going forward, the Consent Decree will require the defendants to institute a comprehensive leak inspection and repair program for all of their vessels and operating facilities. To mitigate the effects of past violations, the Consent Decree specifies that the defendants will repair leaks in the refrigeration systems of certain vessels and facilities when the leak rate would result in losing more than 20% of the refrigerant charge during a 12-month period. This is a stricter standard than is required by the leak repair regulations.
For thirty (30) days after this notice, the Department of Justice will receive comments related to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
On March 20, 2012, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Sai Wentum, M.D. (Registrant), of Nashville, Tennessee. GX 4. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration FW2529672, which authorizes him to dispense controlled substances as a practitioner, on the ground that Registrant does not possess authority under the laws of the State of Tennessee, the State in which he is registered with DEA, to dispense controlled substances.
The Show Cause Order also notified Registrant of his right to request a hearing on the allegations or to submit a written statement regarding the matters of fact and law asserted in lieu of a hearing, the procedures for doing either, and the consequences for failing to do either.
Registrant is the holder of DEA Certificate of Registration FW2529672, which authorizes him to dispense controlled substances in schedules II through V, as a practitioner, at the registered address of 213 W. Maplewood Lane, Suite 400, Nashville, Tennessee 37207. GX 1. His registration has an expiration date of May 31, 2014.
By letter dated June 7, 2011, the Tennessee Board of Medical Examiners (hereinafter, the Board) notified Registrant that the Board had voted to deny his application for licensure as a medical doctor and that his temporary license, previously issued on April 1, 2011, had been rescinded. GX 2. After Registrant appealed the Board's decision to deny his application for licensure, the Board issued an Agreed Order on November 16, 2011. GX 3. The Board found that Registrant is not qualified to obtain a Tennessee medical license because he is not a graduate of a board-approved international medical school, as required by Tenn. Code Ann. § 63-6-207 and Tenn. Comp. R. & Reg. Rule 0880-02-04.
The Controlled Substances Act (CSA) grants the Attorney General authority to revoke a registration “upon a finding that the registrant * * * has had his State license or registration suspended [or] revoked * * * and is no longer authorized by State law to engage in the * * * distribution [or] dispensing of controlled substances.” 21 U.S.C. 824(a)(3). Moreover, DEA has long held that a practitioner must be currently authorized to handle controlled substances in the jurisdiction in which he practices in order to maintain a DEA registration.
As these provisions make plain, possessing authority under state law to dispense controlled substances is an essential condition for holding a DEA registration.
Because Registrant no longer has authority to dispense controlled substances in the State in which he holds his DEA registration, he is not entitled to maintain his DEA registration.
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration FW2529672, issued to Sai Wentum, M.D., be, and it hereby is, revoked. This Order is effective September 14, 2012.
11:30 a.m., August 21, 2012.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC.
Closed.
Determination on eight original jurisdiction cases.
Patricia W. Moore, Staff Assistant to the Chairman, U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC 20530, (202) 346-7001.
10 a.m., Tuesday, August 21, 2012.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC.
Open.
Approval of May 17, 2012 minutes; reports from the Chairman, the Commissioners, and senior staff; Mental Health Docket update, Workforce Development Program Overview, and Short-Term Intervention for Success (SIS) update.
Patricia W. Moore, Staff Assistant to the Chairman, U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC 20530, (202) 346-7001.
Employment and Training Administration (ETA), Labor.
Notice.
The Department of Labor (Department), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 3506(c)(2)(A)]. This program helps ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
ETA is soliciting comments concerning the collection of data in the following information collections: Office of Management and Budget (OMB) Control Number 1205-0466, currently containing ETA Form 9141,
In order to meet its responsibilities under the Immigration and Nationality Act (INA), the Department needs to extend the existing collection of information pertaining to programs requiring prevailing wage determinations and the H-2A and H-2B programs for temporary employment certification in agricultural and non-agricultural occupations. The Department is utilizing this opportunity to separate the collections into more manageable and easy to understand ICRs.
Written comments must be submitted to the office listed in the addresses section below on or before October 15, 2012.
Submit written comments to William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, Room C-4312, Employment & Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. Telephone number: 202-693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay service at 1-877-889-5627 (TTY/TDD). Fax: 202-693-2768. Email at
On April 8, 2012, OMB approved changes to the 1205-0404 and 1205-0466 ICRs in conjunction with recent rulemaking resulting in a final rule published on February 21, 2012 (the 2012 H-2B Final Rule). 77 FR 10038. The 1205-0404 ICR was merged with the 1205-0466 ICR and then the 1205-0466 ICR was extended until April 30, 2015. However, a lawsuit was brought
The emergency extension of the old forms and information collections expires October 31, 2012. Emergency extensions require agencies to publish a
The information collections are required by sections 203(b)(3); 212(a)(5)(A); 212(m), (n), (t); 214(c); and 218 of the INA (8 U.S.C. 1153(b)(3); 1182(a)(5)(A); 1182(m), (n), (t); 1184(c); and 1188); 8 CFR 214.2(h); and 20 CFR 655.135(c) and (d). The INA and applicable DHS regulations require the Secretary of Labor (Secretary) to certify, among other things, that any foreign worker seeking to enter the United States (U.S.) for the purpose of performing certain skilled or unskilled labor will not, by doing so, adversely affect wages and working conditions of U.S. workers similarly employed. The Secretary must also certify that there are not sufficient U.S. workers able, willing, and qualified to perform such skilled or unskilled labor. Before an employer may petition for temporary or permanent skilled or unskilled foreign workers, it must submit a request for certification to the Secretary containing the elements prescribed by the INA and regulations, which differ depending on the visa program under which the labor is sought. In addition, before the Secretary can certify that wages for U.S. workers have not been adversely affected, she must ensure that the employer offers the required wage to the foreign workers in accordance with the Department's applicable labor certification regulations. To ensure that U.S. workers are given as much time as possible to apply for agricultural work, the agricultural employer is required to inform the SWA if the H-2A workers will be leaving their home country later than the third day preceding the employer's first date of need.
The Department is particularly interested in comments which:
* 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 Department'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, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments submitted in response to this comment request will be summarized and/or included in the request for OMB approval of the ICR; they will also become a matter of public record.
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that one meeting of the Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue NW., Washington, DC 20506, as follows (ending times are approximate):
September 11-13, 2012. September 11th—9 a.m. to 6:30 p.m. EDT; September 12th and 13th, 9 a.m.-5 p.m. EDT.
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC, 20506, or call 202/682-5691.
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 15, 2012, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
National Science Foundation.
Submission for OMB Review; Comment Request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork
Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; or (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for National Science Foundation, 725—17th Street, NW., Room 10235, Washington, DC 20503, and to Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 295, Arlington, Virginia 22230 or send email to
Suzanne H. Plimpton at (703) 292-7556 or send email to
NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The following are the comments, and associated responses, resulting from the May 20, 2012
The Graduate Research Fellowship Program uses several sources of information in assessing and documenting program performance and impact. These sources include reports from program evaluation, the GRFP Committee of Visitors, and data compiled from the applications. In addition, GRFP Fellows submit annual activity reports to NSF.
The GRFP Completion report is proposed as a new component of the annual reporting submitted by each GRFP institution to NSF. The Completion Report and the existing Program Expense Report will comprise the GRFP Annual Report. GRFP institutions will certify the current status of all GRFP Fellows at the institution. The current status will be reported as either In Progress, Graduated, Transferred, or Withdrawn. For Graduate Fellows with Graduated status, the graduation date is a required reporting element. Collection of this information will allow the program to obtain information on the current status of Fellows, the number and/or percentage of Graduate Fellowship recipients who complete a science or engineering graduate degree, and an estimate of time to degree completion. The report must be certified and submitted by the institution's designated Financial Official (FO) annually.
U.S. Office of Personnel Management.
60-Day Notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on a revised information collection request (ICR) 3206-0042, Notice of Change in Student's Status. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until October 15, 2012. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to U.S. Office of Personnel Management, Retirement Services, Union Square Room 370, 1900 E Street NW., Washington, DC 20415-3500, Attention: Alberta Butler, or sent via electronic mail to
A copy of this ICR with applicable supporting documentation may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 4332, Washington, DC 20415, Attention: Cyrus S. Benson, or sent via electronic mail to
RI 25-15, Notice of Change in Student's Status, is used to collect sufficient information from adult children of deceased Federal employees or annuitants to assure that the child continues to be eligible for payments from OPM.
U.S. Office of Personnel Management.
30-Day Notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on a revised information collection request (ICR) 3206-0172, Application for Death Benefits under the Federal Employees Retirement System and Documentation and Elections in Support of Application for Death Benefits When Deceased Was an Employee at the Time of Death. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. This information collection was previously published in the
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until September 14, 2012. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
SF 3104, Application for Death Benefits under the Federal Employees Retirement System, is needed to collect information so that OPM can pay death benefits to the survivor of Federal employees and annuitants. SF 3104B, Documentation and Elections in Support of Application for Death Benefits When Deceased Was an Employee at the Time of Death, is needed for deaths in service so that survivors can make the needed elections regarding health benefits, military service and payment of the death benefit.
U.S. Office of Personnel Management.
60-Day Notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on an existing information collection request (ICR) 3206-0194, Annuity Supplement Earnings Report. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until October 15, 2012. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to U.S. Office of Personnel Management, Retirement Services, Union Square 370, 1900 E Street NW., Washington, DC 20415-3500, Attention: Alberta Butler or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street NW., Room 4332, Washington, DC 20415, Attention: Cyrus S. Benson or sent via electronic mail to
RI 92-22, Annuity Supplement Earnings Report, is used each year to obtain the earned income of Federal Employees Retirement System (FERS) annuitants receiving an annuity supplement. The annuity supplement is paid to eligible FERS annuitants who are not retired on disability and are not yet age 62. The supplement approximates the portion of a full career Social Security benefit earned while under FERS and ends at age 62. Like Social Security benefits, the annuity supplement is subject to an earnings limitation.
U.S. Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from June 1, 2012, to June 30, 2012.
Senior Executive Resources Services, Executive Resources and Employee Development, Employee Services, 202-606-2246.
In accordance with 5 CFR 213.103, Schedule A, B and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No changes to report for Schedule A authorities during June 2012.
No changes to report for Schedule B authorities during June 2012.
The following Schedule C appointing authorities were approved during June 2012.
The following Schedule C appointing authorities were revoked during June 2012.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218.
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.
August 15, 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 August 8, 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.
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 August 8, 2012, it filed with the Postal Regulatory Commission a
On June 18, 2012, NYSE Arca, Inc. (“NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
NYSE Arca Rule 3.2 sets forth a process for the nomination and selection of fair representation directors for the NYSE Arca Board of Directors
Similar to the NYSE Arca Bylaws, Section 3.02(a) of the Bylaws of NYSE Arca Equities, Inc. (the “Equities Bylaws”) requires that at least 20 percent of the Equities Board, but no fewer than two directors, must be nominees of the nominating committee of the Equities Board (“Equities Nominating Committee”) selected in accordance with NYSE Arca Equities Rule 3.2. Under Section 3.02(e) of the Equities Bylaws, the Equities Board nominates directors for election at the annual meeting of stockholders, and such nominations must comply with Section 3.02(a) of the Equities Bylaws and NYSE Arca Equities Rules. A 10-member Equities Board must include two nominees of the Equities Nominating Committee.
The Exchange proposes to amend NYSE Arca Rules 3.2(b)(2)(A) and (B) to change the composition of, and the appointment process for, its nominating committee for fair representation directors (the “Nominating Committee”).
The Exchange also proposes to amend the petition process for fair representation director nominees to the NYSE Arca Board.
The proposed rule would also require each petition candidate to include a completed questionnaire used to gather information concerning director candidates, and the Nominating Committee would determine whether the petition candidate is eligible to serve on the NYSE Arca Board (including whether such person was free of a statutory disqualification under Section 3(a)(39) of the Act), and such determination would be final and conclusive. The questionnaire would be a new requirement to assist the Nominating Committee in reaching its decision. According to the Exchange, such a questionnaire is already used by NYSE and NYSE MKT and having the Nominating Committee determine the qualifications of a petition candidate is similar to the NYSE and NYSE MKT processes.
Currently, in the event that the OTP Holder position is nominated by the Nominating Committee pursuant to a petition by the OTP Holders, and there are two or more nominees for the NYSE Arca Board, the Nominating Committee must submit the contested nomination to the OTP Holders for selection. The nominee for the NYSE Arca Board selected by the most OTP Holders is submitted by the Nominating Committee to the NYSE Arca Board. The Exchange proposes to amend this rule to simplify it and provide that if the number of nominees exceeds the number of available seats, the Nominating Committee would submit the contested nomination to the OTP Holders for selection, and the nominee for the NYSE Arca Board receiving the most votes of OTP Holders would be submitted by the Nominating Committee to the NYSE Arca Board.
Current NYSE Arca Equities Rules 3.2(b)(2)(A) and (B) are similar to the counterpart NYSE Arca rules described above.
The Exchange also proposes to amend the petition process for fair representation director nominees to the Equities Board. Under proposed NYSE Arca Equities Rule 3.2(b)(2)(C)(ii), the Equities Nominating Committee would publish the names of the nominees on an “Announcement Date” each year sufficient to accommodate the nomination and petition processes as set forth in the proposed rule.
Currently, in the event that there is a contested nomination, the Equities Nominating Committee submits such contested nomination to the ETP Holders, which may select two nominees for the contested seat on the Equities Board and one nominee for the contested seat on the NYSE Arca Board. The Exchange proposes to simplify this text to align it with the proposed changes to NYSE Arca Rule 3.2(b)(2)(C)(iii).
The Commission has reviewed carefully the proposed rule changes and finds that the proposed rule changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the foregoing reasons, the Commission finds that the proposed rule changes are consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 14, 2012, The NASDAQ Stock Market LLC (“NASDAQ” or “Exchange”), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASDAQ has proposed to amend Rule 4758(a)(1)(A) to reflect a change in NASDAQ's order routing functionality, which will allow routable orders
NASDAQ stated that it has observed that upon partial execution of a routable order at NASDAQ 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 has proposed 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 noted, in its proposal, 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.
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 proposed rule change meets these requirements in that it promotes efficiency in the market, and should, as represented by NASDAQ, increase the likelihood that a routable order will receive faster and better executions. As a result, the proposed rule change could improve NASDAQ's ability to effectively process routable orders. For these reasons, the Commission believes that the proposed change is consistent with Section 6(b)(5) of the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to proposes to [sic] amend the NYSE Amex Options Fee Schedule to (i) Establish a rebate for Order Flow Providers (“OFPs”)
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule to (i) Establish a rebate for OFPs based on the ADV of Customer Electronic Complex Orders executed by an OFP on the Exchange; (ii) increase the service fee applicable to NYSE Amex Options Market Makers that have reached the monthly Market Maker fee cap, from $0.05 per contract to $0.10 per contract for executions of Electronic Complex Orders; and (iii) establish a fee of $0.10 per contract for NYSE Amex Options Market Maker executions of SPY options as part of an Electronic Complex Order. The Exchange proposes to implement these changes on August 1, 2012.
The Exchange proposes to establish a rebate for OFPs based on the ADV of Customer Electronic Complex Orders
In addition to this proposed rebate, the Exchange proposes to amend the rate for the incremental service fee charged to NYSE Amex Options Market Makers that have reached the monthly fee cap for their executions of Electronic Complex Orders. Currently, and as described in endnote 5 to the Fee Schedule, NYSE Amex Options Market Maker fees are aggregated and capped at $350,000 per month. An incremental service fee of $0.01 per contract applies for NYSE Amex Options Market Maker volume executed in excess of 3,500,000 contracts per month. However, the incremental service fee is $0.05 for an execution of an Electronic Complex Order. The Exchange is proposing to increase this incremental service fee for Electronic Complex Order executions from $0.05 per contract to $0.10 per contract.
The Exchange is also proposing to implement a fee of $0.10 per contract for any NYSE Amex Options Market Maker executions of SPY options as part of an Electronic Complex Order. NYSE Amex Options Market Makers that execute Electronic Complex Orders in options other than SPY would continue to pay the existing transaction charges, as provided in the Fee Schedule.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, in general, and furthers the objectives of Section 6(b)(4) of the Act,
The proposal to establish a tiered rebate for OFPs that execute the requisite ADV of Customer Electronic Complex Orders on the Exchange is reasonable because it is designed to attract additional Customer Electronic Complex Order volume to the Exchange, which would benefit all participants by offering greater price discovery, increased transparency and an increased opportunity to trade on the Exchange. Additionally, the Exchange believes that the rates proposed for the rebate are reasonable because they would incentivize OFPs to submit Customer Electronic Complex Orders to the Exchange and would result in a rebate that is reasonably related to an exchange's market quality that is associated with higher volumes. The Exchange also believes that the proposed thresholds for the tiers are reasonable because they will reward OFPs with a greater rebate when they bring a larger number of orders to the Exchange. The Exchange also believes that retroactively applying the highest rebate amount achieved by an OFP to all Customer Electronic Complex Orders executed by the OFP during the calendar month is reasonable because it will increase the incentive for OFPs to achieve a higher tier. Moreover, the Exchange believes that the proposed rebate is equitable and not unfairly discriminatory because it will be available to all OFPs that execute Customer Electronic Complex Orders on the Exchange on an equal and non-discriminatory basis. The Exchange also believes that the proposed rebate is reasonable because it is not new or novel. Instead, the Exchange understands that at least two other option exchanges currently offer a rebate specifically for Customer Complex Order volume.
The Exchange believes that the proposal to increase the capped NYSE Amex Market Maker service fee from $0.05 to $0.10 for executions of Electronic Complex Orders is reasonable because the capped NYSE Amex Options Market Maker would still be incentivized to continue to trade sufficient volume once it has achieved the fee cap, thereby lowering the effective rate for its executions over the course of the month. Specifically, the Exchange believes that the proposed new rate is reasonable because, among other things, the new rate would be factored into an NYSE Amex Options Market Maker's overall transaction costs, including the rebate proposed herein for Customer Electronic Complex Order executions. The Exchange also believes that the proposed new rate is reasonable because the anticipated increase in Customer Electronic Complex Order volume that would result from the proposed rebate will directly benefit capped NYSE Amex Options Market Makers, as they will have an increased opportunity to trade. The Exchange believes that the increased opportunity to trade reasonably balances the proposed increase in the service fee, which would continue to be less than the rate that the NYSE Amex Options Market Maker
The Exchange believes that the proposal to charge $0.10 per contract to all NYSE Amex Options Market Makers that execute SPY options as part of an Electronic Complex Order is reasonable because the rate is set at a level that the Exchange believes may attract greater Market Maker participation in the Exchange's Complex Order Book for SPY options. Additionally, the Exchange notes that NYSE Amex Options Market Makers will continue to be assessed Marketing Charges when they execute SPY options as part of an Electronic Complex Order where the contra party is a Customer. The Marketing Charges for SPY options are currently $0.25 per contract, which, when coupled with the proposed $0.10 per contract rate, results in a $0.35 per contract charge. This all-in cost is reasonable because it is comparable to what other participants on the Exchange will pay under the proposal, ranging from $0.20 per contract for firms trading electronically to $0.43 per contract for non-NYSE Amex Options Market Makers trading electronically. In this regard, the fee is equitable and not unfairly discriminatory, particularly when considering the quoting obligations that NYSE Amex Options Market Makers must satisfy. The Exchange notes that Market Maker quotes establish the Exchange's best bid and best offer, which serve as an important price discovery tool for participants that enter Complex Orders into the Exchange's Complex Order Book. Accordingly, the Exchange believes that the proposed change is reasonable, equitable and not unfairly discriminatory. The Exchange also believes that the proposed rule change is equitable and not unfairly discriminatory because it will apply to all NYSE Amex Options Market Makers on an equal and non-discriminatory basis.
For these reasons, the Exchange believes that the entire proposal is reasonable, equitable and not unfairly discriminatory. Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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)
The Exchange proposes to amend the NYSE Amex Options Fee Schedule (“Fee Schedule”) to (i) change the monthly cost for an Amex Trading Permit (“ATP”), and (ii) introduce a group of 10 issues, to be known as Premium Products, that will carry a monthly fee for certain NYSE Amex Options Market Makers that trade them. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE MKT proposes to amend the Fee Schedule to (i) change the monthly cost for an ATP, and (ii) introduce a group of 10 issues, to be known as Premium Products, that will carry a monthly fee for certain NYSE Amex Options Market Makers that trade them.
Specifically, the Exchange proposes to amend the monthly cost for ATPs that are required by an NYSE Amex Options Market Maker in creating their appointment for those options for which they want to submit electronic quotations to the Exchange. Presently, each ATP that a NYSE Amex Options Market Maker has during a month carries a charge of $5,000 per month. The Exchange will adopt a sliding scale for ATPs as follows:
For additional ATPs beyond five, the monthly fee will be $2,000 for each ATP.
A Floor Market Maker
Concurrent with this change, the Exchange will introduce a list of 10 Premium Products that will carry a monthly fee for any NYSE Amex Options Market Maker who transacts in them, except those Floor Market Makers subject to the lower ATP fees previously described. The proposed fee is $1,000 per product traded with a monthly cap of $7,000. The 10 Premium Products are SPY, AAPL, IWM, QQQ, BAC, EEM, GLD, JPM, XLF, and VXX. Any change to the list of Premium Products would be done through a fee filing.
The proposed changes will be operative on August 1, 2012.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)
The proposed changes in NYSE Amex Options Market Maker ATP fees from a fixed fee of $5,000 per month per permit to a sliding scale that ranges from $8,000 per month for the first ATP to $2,000 per month for each additional ATP beyond five ATPs is reasonable, equitable, and not unfairly discriminatory for the following reasons. First, the proposed change is both reasonable and equitable when viewed in light of the cost for a market maker on at least two other exchanges to obtain a sufficient number of trading permits or rights to quote a similar number of names. For example, on the International Securities Exchange (“ISE”), a Competitive Market Maker (“CMM”) is required to have nine CMM Trading Rights in order to quote all issues on the ISE.
A further comparison may be made with the Chicago Board Options Exchange (“CBOE”) and the trading permit costs for a market maker to create an assignment there. CBOE has a sliding scale for Trading Permit Holders (“TPHs”) who are acting as market makers. The sliding scale is $5,500 per month for permits one to 10, $4,000 per month for permits 11 to 22 [sic], and $2,500 for permits 21 and higher. The discounted permit rates of $4,000 and $2,500 are only available to TPHs who commit to a full year of that number of permits. In configuring an appointment on CBOE, a market maker incurs an appointment cost for each option in its appointment based on various tiers.
The Exchange further notes that by virtue of the limited number of CMM Trading Rights available for sale or lease on ISE and the Class Quoting Limit (“CQL”)
A second aspect of the proposed change in the monthly ATP cost that needs to be considered is that while a total of four ATPs are required under the proposal to quote all options on the Exchange, in practice some participants have more than the maximum number of ATPs required. Typically this is done for accounting or risk management purposes within an ATP Holder's organization. Under the proposal, the fifth ATP is reduced in cost from $5,000 per month to $3,000 per month, and ATPs beyond the fifth ATP are reduced in cost from $5,000 per month to $2,000 per month. This is both reasonable and equitable given that acquiring additional ATPs beyond the four required to quote all options on the Exchange is likely to be for purely accounting or risk management purposes. As this aspect of the proposal applies to all NYSE Amex Options Market Maker ATPs equally, it is not unfairly discriminatory.
The Exchange's proposal to adopt lower fees for certain Floor Market Makers who purchase an ATP is reasonable, equitable, and not unfairly discriminatory for the following reasons. First, the Exchange believes that open or public outcry markets serve an important role in the price discovery process that benefits all participants on the Exchange and in the marketplace. Presently, there are 41 entities that have 109 market making ATPs on the Exchange, ranging from one ATP to 10 ATPs per entity. Of these 41 entities, 10 have Floor Market Makers, with six of the 10 having one Floor Market Maker each. In light of its desire to foster the price discovery process via public outcry markets, the Exchange believes that it is reasonable and equitable to establish a slightly discounted ATP fee for Floor Market Makers, which will be $5,000 per month for each ATP, with a maximum of two such ATPs (or $10,000 in that case). By contrast under the proposal, an NYSE Amex Options Market Maker will pay $8,000 for the first ATP and $6,000 for the second ATP, for a total of $14,000. To ensure the Floor Market Maker ATP is being used to foster price discovery in public outcry markets, the Exchange has proposed to limit the availability of the lower fees to those Floor Market Makers who conduct at least 75% of their contract volume manually, by public outcry, and who do not utilize more than two ATPs for market making in a given month. The latter restriction is designed to encourage participation in public outcry from smaller broker-dealers looking to begin market making, which will encourage competition. The proposal is not unfairly discriminatory as it is available to any NYSE Amex Options Market Maker who wishes to contribute to public outcry markets such that at least 75% of its contract volumes are executed in public outcry. Those NYSE Amex Options Market Makers who have no desire to engage in public outcry trading are not being disadvantaged, as public outcry trading cannot take place at prices that are inferior to the electronic quotations submitted by an NYSE Amex Options Market Maker.
The Exchange's proposal to adopt a Premium Product Issues List and the associated monthly NYSE Amex Options Market Maker Fee of $1,000 per issue with a $7,000 per month cap is reasonable, equitable, and not unfairly discriminatory for the following reasons. The Exchange does not limit the number of participants who may act as market makers, either electronically or in public outcry. This is in direct contrast to, for example, the ISE and CBOE, which have a limited number of CMM Trading Rights and a CQL, respectively. The result is that the Exchange has more than sufficient liquidity in the most active options on the Exchange as evidenced by its market share in those options. By adopting a Premium Product Issues List, which is comprised of many of the most active issues on the Exchange, and a corresponding monthly fee applicable to NYSE Amex Options Market Makers who transact in any of those names, the Exchange intends to encourage meaningful market maker participation in these names.
For example, presently it would be permissible within Exchange rules for an NYSE Amex Options Market Maker to send in a quote that is $1 bid for one contract, offered at $6 for one contract in the at-the-money series in SPY. Such a quote, while permitted under Exchange rules, has an extremely low probability of ever being executed against, although if it were to happen, it quite likely would be viewed as somewhat of a “windfall” from the market maker's profitability perspective. Such a quote, however, is also required to be processed by the Exchange, despite the low probability of the quote ever being executed against. By adopting the Premium Product Issues List and the associated monthly fee applicable to NYSE Amex Options
The Premium Product Issues List will apply to all NYSE Amex Options Market Makers equally, except for those market makers who are eligible for the newly proposed reduced Floor Market Maker ATP fees, one of the requirements of which is that they achieve 75% or more of their volumes in public outcry. Excluding market makers who are subject to these lower fees is in keeping with the Exchange's stated goals of continuing to foster price discovery through public outcry while at the same time reducing the instances of “less meaningful” electronic quotes in the more liquid names that comprise the Premium Product Issues List. For these reasons, the Exchange believes that the proposal is reasonable, equitable, and not unfairly discriminatory.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 Section I of the Exchange's Pricing Schedule titled “Rebates and Fees for Adding and Removing Liquidity in Select Symbols,” to amend various Select Symbols,
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend Sections I and II of the Exchange's Pricing Schedule. Specifically, the Exchange is proposing to amend Section I of the Pricing Schedule to amend the Select Symbols, increase certain Complex Order Rebates for Adding Liquidity, eliminate Complex Order Fees for Adding Liquidity, increase certain Complex Order Fees for Removing Liquidity, eliminate a discount applicable to options overlying SPDR S&P 500 (“SPY”),
The Exchange displays a list of Select Symbols in its Pricing Schedule at Section I, which symbols are subject to the rebates and fees in that section. The Exchange is proposing to add the following symbol to the list of Select Symbols in Section I of the Pricing Schedule: Arena Pharmaceuticals Inc. (“ARNA”). The Exchange is also proposing to delete the following symbols from the list of Select Symbols in Section I of the Pricing Schedule: Dell Inc. (“DELL”), and Newmont Mining Corp. (“NEM” (collectively, “Proposed Deleted Symbols”). These Proposed Deleted Symbols would be subject to the rebates and fees in Section II of the Pricing Schedule entitled “Multiply Listed Options Fees.” The Exchange believes that by adding and removing the above-referenced symbols in Section I of the Pricing Schedule the Exchange will continue to attract order flow to the Exchange.
The Exchange is proposing to increase the Complex Order Rebates for Adding Liquidity from $0.00 to $0.10 for Specialists,
The Exchange also is proposing to increase the Complex Order Fees for Removing Liquidity from $0.36 to $0.39 per contract for Specialists and Market Makers, and to increase the Complex Order Fees for Removing Liquidity from $0.38 to $0.39 per contract for Firms, Broker-Dealers, and Professionals in Select Symbols. The Exchange is proposing to increase these fees in order that it may offer additional rebates for Customer Complex Orders as described below.
The Exchange is proposing to remove the additional incentive for Customers who transact Complex Orders in SPY. The Exchange currently pays a Customer Complex Order Rebate for Adding Liquidity of $0.32 per contract and a Customer Complex Order Rebate for Removing Liquidity of $0.06 per contract, but specifies that the Exchange will increase the Customer Complex Order Rebates for Adding and Removing Liquidity by $0.01 per contract for transactions in SPY. Therefore, with this change, Customer Complex Orders that add liquidity in SPY would receive a rebate of $0.32 per contract and Customer Complex Orders that remove liquidity in SPY receive a rebate of $0.06 per contract. The Exchange is eliminating the discount in lieu of offering a higher rebate for Customer Complex Orders as described below.
The Exchange also is proposing to make technical corrections in Section I, Parts A and B, by replacing “$0.00” with “N/A” for several categories. This is not a change to these fees, but a technical amendment since in these instances “N/A” better reflects that a fee is not relevant for this category rather than “$0.00” which simply reflects that no fee is currently being charged for this category.
The Exchange desires to continue to incentivize Firms to transact electronic orders, by providing Firms with an opportunity to pay lower fees in Section II of the Pricing Schedule by offering a lower threshold in order for Firms to receive a reduction of electronic Options Transaction Charges in Penny Pilot and non-Penny Pilot Options. Currently, Firms must have a volume greater than 750,000 electronically delivered contracts in a month to obtain
The Exchange recently adopted a Customer Rebate Program to incentivize members to transact Customer orders on the Exchange. Such liquidity benefits all market participants through increased liquidity. At this time, the Exchange proposes to expand its Customer Rebate Program by adding another Category of orders eligible for rebates, “Category D.” This new category will pay rebates to members executing electronically delivered Customer Complex Orders in Select Symbols that add liquidity.
The Customer Rebate Program consists of three tiers. The first tier (0 to 49,999 contracts in a month) and the second tier (50,000 to 99,999 contracts in a month) do not earn any rebates defined in Category D. The third tier (over 100,000 contracts in a month) pays a rebate as an additional incentive for member organizations to route Customer Complex Order flow to the Exchange for execution ($0.05 per contract). The $0.05 will be in addition to the Customer Complex Order Rebate for Adding Liquidity (currently $0.32 per contract) for a total rebate of $0.37 for Category D.
As is currently the case with Category A, B, and C, each tier or “Threshold” is calculated by totaling all applicable Multiply-Listed Options electronically delivered Customer Orders, except electronic Qualified Contingent Cross Orders (eQCC Orders). The Exchange proposes to amend the calculation of the Average Daily Volume Threshold by totaling Customer volume in Multiply Listed Options that are electronically delivered and executed, except QCC Orders as defined in Exchange Rule 1080(o), and including electronically delivered and executed Customer Complex Orders in Select Symbols (“Threshold Volume”).
The Exchange believes that its proposal to amend its Pricing Schedule is consistent with Section 6(b) of the Act
The Exchange believes that it is reasonable to remove and add the proposed symbols from its list of Select Symbols to attract additional order flow to the Exchange. The Exchange believes that the fees and rebates in Section I will attract order flow for the newly added Select Symbol ARNA. Also, the Exchange believes that applying the fees in Section II of the Pricing Schedule to the Proposed Deleted Symbols, including the opportunity to receive payment for order flow, will attract order flow to the Exchange.
The Exchange believes that it is equitable and not unfairly discriminatory to amend its list of Select Symbols to remove and add the proposed symbols because the list of Select Symbols would apply uniformly to all categories of participants in the same manner. All market participants who trade the Select Symbols would be subject to the rebates and fees in Section I of the Pricing Schedule, which would not include the proposed deleted symbols, but would include the proposed added symbol. Also, all market participants would be uniformly subject to the fees in Section II, which would include the Proposed Deleted Symbols, but would not include the proposed added symbol.
The Exchange believes its proposal to increase the Complex Order Rebates for Adding Liquidity from $0.00 to $0.10 for Specialists,
The Exchange believes that its proposal to increase the Complex Order Rebate for Adding Liquidity is equitable and not unfairly discriminatory because the Exchange is proposing to uniformly increase the rebates among market participants, except Customers. Today, Customers receive a Complex Order Rebate for Adding Liquidity of $0.32 per contract. Customers would continue to receive a higher rebate already because Customer order flow brings unique benefits to the market which benefits all participants through increased liquidity.
The Exchange believes its proposal to eliminate Complex Order Fees for Adding Liquidity is reasonable because market participants would be incentivized to transact additional orders on the Exchange at no cost when adding liquidity. The Exchange believes its proposal to eliminate Complex Order Fees for Adding Liquidity is equitable and not unfairly discriminatory because no market participant would be assessed a Complex Order Fee for Adding Liquidity.
The Exchange believes its proposal to increase the Complex Order Fees for Removing Liquidity from $0.36 to $0.39 per contract for Specialists and Market
In addition, the Exchange believes that removing the additional $0.01 per contract incentive, when transacting electronically delivered SPY orders, in addition to the Customer Complex Order Rebates for Adding and Removing Liquidity in SPY is reasonable because the Exchange is proposing to incentivize members to transact Customer Complex Orders by offering an incentive in the Customer Rebate Program. The Exchange believes that the elimination of the SPY discount is equitable and not unfairly discriminatory because no market participants would be entitled to this discount.
The Exchange's proposal to make technical corrections in Section I, Parts A and B, by replacing “$0.00” with “N/A” for several categories is reasonable, equitable, and not unfairly discriminatory because this is not a change to these fees, but a clarification that in these instances “N/A” better reflects that a fee is not relevant for this category rather than using “$0.00” which simply reflects that no fee is currently being charged for this category.
The Exchange's amendment to the volume threshold applicable to the Electronic Firm Fee Discount in Section II of the Pricing Schedule is reasonable because the Exchange believes that the lower threshold would allow a greater number of Firms to obtain the lower pricing when they meet the volume threshold.
The Exchange's amendment to the volume threshold applicable to the Electronic Firm Fee Discount in Section II of the Pricing Schedule is equitable and not unfairly discriminatory because it provides all Firms with an opportunity to pay lower fees through the lower volume threshold of 600,000 electronically delivered contracts in a month rather than the current threshold of 750,000. Today Firms that transact 750,000 electronically delivered contracts in a month are entitled to reduce their Firm electronic Options Transaction Charges in Penny Pilot ($0.40 per contract) and non-Penny Pilot ($0.45 per contract) in a given month to $0.13 per contract.
The Exchange's amendment to the Customer Rebate Program is reasonable because it will provide members another manner in which to earn a rebate on the Exchange. This rebate will be in addition to any rebate that the member receives in Section I of the Pricing Schedule. The Exchange believes that offering the Category D rebate and including Customer Complex Order volume in Select Symbols in the Threshold Volume, will attract additional Customer order flow to the Exchange and benefit all market participants. The Exchange believes that incentivizing members executing electronically delivered Customer Complex Orders in Select Symbols to direct Customer order flow to the Exchange will benefit all market participants.
The Exchange's amendment to the Customer Rebate Program is equitable and not unfairly discriminatory because all market participants are eligible to receive the new rebate provided they meet both the volume and order type requirement of Category D. Also, the Exchange believes it is equitable and not unfairly discriminatory to base rebates not only on volume but on the type of orders because the Exchange would uniformly apply the rebates to all market participants by order type. The Exchange currently offers no rebate under Category D for the first tier (between 0 and 49,999 contracts in a month) and the second tier (between 50,000 and 99,000 contracts in a month). It is only in the third tier (over 100,000 contracts in a month) that there is a rebate and it is $0.05 per contract to members that execute electronically delivered Customer Complex Orders in any Select Symbol that adds liquidity. Further, the concept of volume tiers and rebates based on tiers is not novel. Market participants entitled to Category A, B, or C rebates are subject to Section II of the Pricing Schedule, which has no rebates. Market participants entitled to Category D rebates are subject to Section I of the Pricing Schedule and also receive the Rebate for Adding Liquidity in Section I.
The Exchange operates in a highly competitive market, comprised of ten exchanges, in which market participants can easily and readily direct order flow to competing venues if they deem fee and rebate levels at a particular venue to be excessive. Accordingly, the fees that are assessed and the rebates paid by the Exchange must remain competitive with fees charged and rebates paid by other venues and therefore must continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than competing venues.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 15, 2012, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider this proposed rule change, which would allow the listing of a new type of options product, the comment letters that have been submitted in connection with this proposed rule change, and any response to the comment letters submitted by the Exchange.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 20, 2012, the International Securities Exchange, LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider this proposed rule change, which would allow the listing of a new type of options product, the comment letter that has been submitted in connection with this proposed rule change, and any response to the comment letter submitted by the Exchange.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
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 adopt a new Rule 1046 entitled “Clearing Arrangements” to further clarify the text of Exchange Rule 911, entitled “Member and Member Organization Participation” with respect to the requirement to have a membership in or access arrangement with a clearing agency.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to adopt a new Rule 1046 to provide clarity for members or member organizations that are conducting an options business on the Exchange. Exchange Rule 911 requires initial and continuing compliance with the provisions of Exchange Rule 911 to participate in the Exchange as a member or member organization. Specifically, Rule 911(a)(2) states that “membership in, or access arrangement with a member of, a clearing agency registered with the Commission which maintains facilities through which Exchange compared trades may be settled” is required initially upon membership with the Exchange and must be continually maintained during membership. The Rule applies broadly to all members and member organizations, whether they conduct equities or options business, but does not specifically define what qualifies as a clearing arrangement.
The Exchange is proposing to clarify this requirement by adopting Rule 1046, entitled “Clearing Arrangements,” specifically applicable to Exchange members and member organizations conducting an options business. Rule 1046 would require a member or member organization conducting an options business to either have a direct membership in The Options Clearing Corporation (“the OCC”), or an indirect relationship with an Exchange member organization that is a clearing member of the OCC.
The Exchange believes the proposed language further clarifies the existing requirement of Rule 911 by specifying that a clearing arrangement means a direct membership with the OCC or an indirect relationship with an Exchange member organization that has a membership in the OCC. The Exchange believes this is not a substantive change but rather a clarifying amendment.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that clarifying its current text by adopting a new Rule 1046 to specify the types of clearing arrangements a member or member organization conducting an options business is required to obtain and maintain will assist prospective and current members in understanding the obligations of Rule 911 relating to clearing arrangements. The proposed rule serves to codify with specificity the obligations which today apply to current Exchange members and member organizations.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 (the “Act”),
The ISE is proposing to amend its Schedule of Fees. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of 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 Exchange currently assesses per contract transaction fees and provides rebates to market participants that add or remove liquidity from the Exchange (“maker/taker fees and rebates”) in 101 options classes (the “Select Symbols”).
Additionally, the Exchange proposes to add the following 32 symbols to the list of Special Non-Select Penny Pilot Symbols: Arch Coal, Inc. (“ACI”), American Capital Agency Corporation (“AGNC”), Amylin Pharmaceuticals, Inc. (“AMLN”), Alpha Natural Resources, Inc. (“ANR”), Apache Corporation (“APA”), Arena Pharmaceuticals, Inc. (“ARNA”), ATP Oil & Gas Corporation (“ATPG”), Yamana Gold, Inc. (“AUY”), Baxter International, Inc. (“BAX”), Delta Airlines, Inc. (“DAL”), E.I. du Pont de Nemours and Company (“DD”), The Walt Disney Company (“DIS”), Dow Chemical Company, Inc. (“DOW”), Human Genome Sciences, Inc. (“HGSI”), JC Penney Co., Inc. (“JCP”), Joy Global, Inc. (“JOY”), KB Home (“KBH”), Kinross Gold Corporation (“KGC”), Mastercard, Inc. (“MA”), MBIA, Inc. (“MBI”), Medtronic, Inc. (“MDT”), Nike, Inc. (“NKE”), Pepsico, Inc. (“PEP”), SandRidge Energy, Inc. (“SD”), Union Pacific Corporation (“UNP”), United Technologies Corporation (“UTX”), Valero Energy Corporation (“VLO”), Walgreen Co. (“WAG”), Western Digital Corporation (“WDC”), Walter Energy, Inc. (“WLT”), Utilities Select Sector SPDR Fund (“XLU”) and Zynga, Inc. (“ZNGA”) (“Additional Special Non-Select Symbols”).
With this proposed rule change, the 40 symbols noted above, i.e., the Proposed Deleted Select Symbols and the Additional Special Non-Select Symbols, together with the 25 symbols that are already designated as Special Non-Select Penny Pilot Symbols, will now be subject to the fees for Special Non-Select Penny Pilot Fees listed in Section I of the Schedule of Fees.
The Exchange believes that its proposal to amend its Schedule of Fees is consistent with Section 6(b) of the Act
The Exchange believes that it is reasonable to remove the Proposed Deleted Select Symbols from its list of Select Symbols and add them to the list of Special Non-Select Penny Pilot Symbols. The Exchange also believes it is reasonable to add the Additional Special Non-Select Symbols to the current list of Special Non-Select Penny Pilot Symbols. The Exchange believes that applying the fees applicable to Special Non-Select Penny Pilot Symbols to the Proposed Deleted Select Symbols and to the Additional Special Non-Select Symbols will attract additional order flow to the Exchange.
The Exchange believes that it is equitable and not unfairly discriminatory to amend its list of Select Symbols to remove the Proposed Deleted Symbols and to amend its list of Special Non-Select Penny Pilot Symbols to add the Additional Special Non-Select Symbols because the list of Select Symbols and Special Non-Select Penny Pilot Symbols would apply uniformly to all categories of participants in the same manner. All market participants who trade the Select Symbols and the Special Non-Select Penny Pilot Symbols would be uniformly subject to the fees and rebates applicable to those symbols.
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.
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.
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 purpose of this proposed rule change is to enable DTC to collect and pass through certain fees owed by participants to transfer agents in connection with the Deposit and Withdrawal at Custodian (“DWAC”) system.
In its filing with the Commission, DTC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. DTC has prepared summaries, set forth in sections (A), (B) and (C) below, of the most significant aspects of such statements.
DWAC can be utilized to electronically transfer securities between Participants and transfer agents, acting as custodians.
In order to facilitate a more efficient DWAC fee collection process, DTC is proposing to collect and pass through DWAC fees owed by Participants to transfer agents.
DTC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act,
DTC does not believe that the proposed rule change will have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(ii)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-DTC-2012-05 and should be submitted on or before September 5, 2012.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE is proposing to amend transaction fees for certain regular and complex orders executed on the Exchange. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of 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 Exchange currently assesses a per contract transaction charge and provides rebates to market participants that add or remove liquidity from the Exchange (“maker/taker fees and rebates”) in a number of options classes (the “Select Symbols”).
For complex orders in the Select Symbols (excluding SPY), the Exchange currently charges a taker fee of: (i) $0.35 per contract for Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer orders, and (ii) $0.38 per contract for Non-ISE Market Maker orders. Priority Customer orders are not charged a taker fee for complex orders in the Select Symbols (excluding SPY). The Exchange now proposes to increase the complex order taker fee in the Select Symbols (excluding SPY) for: (i) Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer orders, from $0.35 per contract to $0.37 per contract, and (ii) Non-ISE Market Maker orders, from $0.38 per contract to $0.39 per contract. The Exchange is not proposing any change to the complex order taker fee for Priority Customer orders in the Select Symbols (excluding SPY).
With this proposed rule change, the Exchange proposes to adopt a new column for taker fees for SPY as those fees are distinct and also to provide market participants greater clarity with regards to fees for SPY.
With the proposed adoption of a new column for SPY, the column that previously reflected taker fees for SPY and Non-Select Penny Pilot Symbols will now display taker fees for Non-Select Penny Pilot Symbols only. For complex orders in the Non-Select Penny Pilot Symbols, the Exchange currently charges a taker fee of: (i) $0.35 per contract for Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer orders, and (ii) $0.39 per contract for Non-ISE Market Maker orders. Priority Customer orders are not charged a taker fee for complex orders in the Non-Select Penny Pilot Symbols. The Exchange now proposes to increase the complex order taker fee in the Non-Select Penny Pilot Symbols for Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer orders, from $0.35 per contract to $0.37 per contract. The Exchange is not proposing any change to the complex order taker fee for Non-ISE Market Maker and Priority Customer orders in the Non-Select Penny Pilot Symbols.
For complex orders in the Non-Penny Pilot Symbols, the Exchange currently charges a taker fee of: (i) $0.75 per contract for Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer orders, and (ii) $0.78 per contract for Non-ISE Market Maker orders. Priority Customer orders are not charged a taker fee for complex orders in the Non-Penny Pilot Symbols. The Exchange now proposes to increase the complex order taker fee in the Non-Penny Pilot Symbols for: (i) Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer orders, from $0.75 per contract to $0.80 per contract, and (ii) Non-ISE Market Maker orders, from $0.78 per contract to $0.83 per contract. The Exchange is not proposing any change to the complex order taker fee for Priority Customer orders in the Non-Penny Pilot Symbols.
Additionally, the Exchange provides Market Makers with a two cent discount when trading against Priority Customer orders that are preferenced to them. This discount is applicable when Market Makers remove liquidity from the complex order book in the Select Symbols, in SPY, in the Non-Select Penny Pilot Symbols and in the Non-Penny Pilot Symbols. Market Makers that remove liquidity in the Select Symbols, in SPY, in the Non-Select Penny Pilot Symbols and in the Non-Penny Pilot Symbols from the complex order book by trading with Priority Customer orders that are preferenced to them will continue to receive a two cent discount.
Further, the Exchange currently provides volume-based tiered rebates for Priority Customer complex orders in the Select Symbols (excluding SPY), in SPY, in the Non-Select Penny Pilot Symbols and in the Non-Penny Pilot Symbols when these orders trade with non-Priority Customer orders in the complex order book. In order to enhance the Exchange's competitive position and to incentivize Members to increase the amount of Priority Customer complex orders in the Select Symbols (excluding SPY), in SPY, in the Non-Select Penny Pilot Symbols and in the Non-Penny Pilot Symbols that they send to the Exchange, the Exchange now proposes to increase the rebate levels for these volume-based tiers. In the Select Symbols (excluding SPY), the Exchange currently provides a rebate of $0.32 per contract, per leg, for Priority Customer complex orders when these orders trade with non-Priority Customer complex orders in the complex order book. Additionally, Members who achieve a certain level of average daily volume (ADV) of executed Priority Customer complex order contracts across all symbols during a calendar month are provided a rebate of $0.33 per contract, per leg, in these symbols, if a Member achieves an ADV of 75,000 Priority Customer complex order contracts; $0.34 per contract, per leg, in these symbols, if a Member achieves an ADV of 125,000 Priority Customer complex order contracts; and $0.35 per contract, per leg, in these symbols, if a Member achieves an ADV of 250,000 Priority Customer complex order contracts. The highest rebate amount achieved by the Member for the current calendar month applies retroactively to all Priority Customer complex order contracts that trade with non-Priority Customer complex orders in the complex order book executed by the Member during such calendar month. The Exchange now proposes to increase the rebate levels applicable to the Select Symbols (excluding SPY), as follows: (i) Increase the base rebate level, from $0.32 per contract, per leg, to $0.34 per contract, per leg, (ii) increase the rebate level, from $0.33 per contract, per leg, to $0.36 per contract, per leg, for Members who achieve an ADV of 75,000 Priority Customer complex order contracts, (iii) increase the rebate level, from $0.34 per contract, per leg, to $0.37 per contract, per leg, for Members who achieve an ADV of 125,000 Priority Customer complex order contracts, and (iv) increase the rebate level, from $0.35 per
In SPY, the Exchange currently provides a rebate of $0.33 per contract, per leg, for Priority Customer complex orders when these orders trade with non-Priority Customer complex orders in the complex order book. Additionally, Members who achieve a certain level of ADV of executed Priority Customer complex order contracts in SPY during a calendar month are provided a rebate of $0.34 per contract, per leg, if a Member achieves an ADV of 75,000 Priority Customer complex order contracts; $0.35 per contract, per leg, if a Member achieves an ADV of 125,000 Priority Customer complex order contracts; and $0.36 per contract, per leg, if a Member achieves an ADV of 250,000 Priority Customer complex order contracts. The highest rebate amount achieved by the Member for the current calendar month applies retroactively to all Priority Customer complex order contracts that trade with non-Priority Customer complex orders in the complex order book executed by the Member during such calendar month. The Exchange now proposes to increase the rebate levels applicable to SPY, as follows: (i) Increase the base rebate level, from $0.33 per contract, per leg, to $0.36 per contract, per leg, (ii) increase the rebate level, from $0.34 per contract, per leg, to $0.37 per contract, per leg, for Members who achieve an ADV of 75,000 Priority Customer complex order contracts, (iii) increase the rebate level, from $0.35 per contract, per leg, to $0.38 per contract, per leg, for Members who achieve an ADV of 125,000 Priority Customer complex order contracts, and (iv) increase the rebate level, from $0.36 per contract, per leg, to $0.39 per contract, per leg, for Members who achieve an ADV of 250,000 Priority Customer complex order contracts.
In Non-Select Penny Pilot Symbols, the Exchange currently provides a rebate of $0.29 per contract, per leg, for Priority Customer complex orders when these orders trade with non-Priority Customer complex orders in the complex order book. Additionally, Members who achieve a certain level of ADV of executed Priority Customer complex order contracts in the Non-Select Penny Pilot Symbols during a calendar month are provided a rebate of $0.31 per contract, per leg, in these symbols, if a Member achieves an ADV of 75,000 Priority Customer complex order contracts; $0.33 per contract, per leg, in these symbols, if a Member achieves an ADV of 125,000 Priority Customer complex order contracts; and $0.34 per contract, per leg, in these symbols, if a Member achieves an ADV of 250,000 Priority Customer complex order contracts. Again, the highest rebate amount achieved by the Member for the current calendar month applies retroactively to all Priority Customer complex order contracts that trade with non-Priority Customer complex orders in the complex order book executed by the Member during such calendar month. The Exchange now proposes to increase the rebate levels applicable to the Non-Select Penny Pilot Symbols, as follows: (i) Increase the base rebate level, from $0.29 per contract, per leg, to $0.33 per contract, per leg, (ii) increase the rebate level, from $0.31 per contract, per leg, to $0.34 per contract, per leg, for Members who achieve an ADV of 75,000 Priority Customer complex order contracts, (iii) increase the rebate level, from $0.33 per contract, per leg, to $0.36 per contract, per leg, for Members who achieve an ADV of 125,000 Priority Customer complex order contracts, and (iv) increase the rebate level, from $0.34 per contract, per leg, to $0.37 per contract, per leg, for Members who achieve an ADV of 250,000 Priority Customer complex order contracts.
In the Non-Penny Pilot Symbols, the Exchange currently provides a rebate of $0.62 per contract, per leg, for Priority Customer complex orders when these orders trade with non-Priority Customer complex orders in the complex order book. Additionally, Members who achieve a certain level of ADV of executed Priority Customer complex order contracts in the Non-Penny Pilot Symbols during a calendar month are provided a rebate of $0.64 per contract, per leg, in these symbols, if a Member achieves an ADV of 75,000 Priority Customer complex order contracts; $0.66 per contract, per leg, in these symbols, if a Member achieves an ADV of 125,000 Priority Customer complex order contracts; and $0.67 per contract, per leg, in these symbols, if a Member achieves an ADV of 250,000 Priority Customer complex order contracts. Again, the highest rebate amount achieved by the Member for the current calendar month applies retroactively to all Priority Customer complex order contracts that trade with non-Priority Customer complex orders in the complex order book executed by the Member during such calendar month. The Exchange now proposes to increase the rebate levels applicable to the Non-Penny Pilot Symbols, as follows: (i) Increase the base rebate level, from $0.62 per contract, per leg, to $0.66 per contract, per leg, (ii) increase the rebate level, from $0.64 per contract, per leg, to $0.70 per contract, per leg, for Members who achieve an ADV of 75,000 Priority Customer complex order contracts, (iii) increase the rebate level, from $0.66 per contract, per leg, to $0.74 per contract, per leg, for Members who achieve an ADV of 125,000 Priority Customer complex order contracts, and (iv) increase the rebate level, from $0.67 per contract, per leg, to $0.76 per contract, per leg, for Members who achieve an ADV of 250,000 Priority Customer complex order contracts.
Further, the Exchange currently provides a rebate of $0.06 per contract, per leg, for Priority Customer complex orders in all symbols traded on the Exchange (excluding SPY) when these orders trade against quotes or orders in the regular orderbook. In order to enhance the Exchange's competitive position and to incentivize Members to increase the amount of Priority Customer complex orders that they send to the Exchange, the Exchange is proposing to adopt volume-based tiers similar to the volume-based tiers currently in place for complex orders that trade with non-Priority Customer complex orders in the complex order book. While keeping the base rebate at $0.06 per contract, per leg, the Exchange proposes to adopt increased rebates, as follows: (i) Increase the rebate level, from $0.06 per contract, per leg, to $0.07 per contract, per leg, for Members who achieve an ADV of 75,000 executed Priority Customer complex contracts, (ii) increase the rebate level, from $0.06 per contract, per leg, to $0.08 per contract, per leg, for Members who achieve an ADV of 125,000 executed Priority Customer complex contracts, and (iii) increase the rebate level, from $0.06 per contract, per leg, to $0.09 per contract, per leg, for Members who achieve an ADV of 250,000 executed Priority Customer complex contracts. The highest rebate amount achieved by the Member for the current calendar month shall apply retroactively to all Priority Customer complex order contracts that trade against quotes or orders in the regular orderbook during such calendar month.
For SPY, the Exchange currently provides a rebate of $0.07 per contract, per leg, for Priority Customer complex orders when these orders trade against quotes or orders in the regular orderbook. The Exchange now proposes to adopt volume-based tiers for options on SPY, similar to the volume-based tiers currently in place for complex orders that trade with non-Priority Customer complex orders in the complex order book. While keeping the
Finally, pursuant to Securities and Exchange Commission (“SEC”) approval, the Exchange currently allows Market Makers to enter quotations for complex order strategies in the complex order book.
The Exchange now proposes to increase the maker fee for Market Maker, Non-ISE Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer orders in the Complex Quoting Symbols from $0.35 per contract to $0.37 per contract when these orders interact with Priority Customer orders in the complex order book. The Exchange does not propose any change to fees for Priority Customer orders in the Complex Quoting Symbols that trade in the complex order book. Additionally, the Exchange provides Market Makers with a two cent discount when trading against Priority Customer orders that are preferenced to them. This discount is applicable when Market Makers add or remove liquidity from the complex order book in the Complex Quoting Symbols. The Exchange does not propose any change to this discount. As such, Market Makers will continue to receive the two cent discount.
The Exchange believes that its proposal to amend its Schedule of Fees is consistent with Section 6(b) of the Securities and Exchange Act of 1934 (the “Act”)
The Exchange believes that its proposal to assess a $0.32 per contract taker fee for regular Market Maker and Market Maker Plus orders in the Select Symbols is reasonable and equitably allocated because the fee is within the range of fees assessed by other exchanges employing similar pricing schemes. For example, NASDAQ OMX PHLX, Inc. (“PHLX”) currently charges $0.39 per contract for Specialist and Market Maker orders in its regular order book.
The Exchange also believes that its proposal to assess a $0.33 per contract taker fee for regular Firm Proprietary/Broker-Dealer and Professional Customer orders and $0.36 per contract taker fee for regular Non-ISE Market Maker orders in the Select Symbols is reasonable and equitably allocated because the fee is also within the range of fees assessed by other exchanges employing similar pricing schemes. By comparison, the proposed fees assessed to regular Firm Proprietary/Broker-Dealer and Professional Customer orders and to regular Non-ISE Market Maker orders are lower than the rates assessed by PHLX for similar orders. PHLX currently charges a taker fee of $0.45 per contract for equivalent orders in its regular order book.
The Exchange also believes that its proposal to assess a $0.25 per contract taker fee for all regular Priority Customer orders in the Select Symbols is reasonable and equitably allocated because the fee is within the range of fees assessed by other exchanges employing similar pricing schemes. The proposed fee is substantially lower than the $0.39 per contract taker fee currently charged by PHLX for Customer orders in its regular order book.
The Exchange believes that the price differentiation between the various market participants is justified because Market Makers have obligations to the market that the other market participants do not. The Exchange believes that, in this instance, it is equitable to assess a higher fee to market participants that do not have the quoting requirements that Exchange Market Makers have. While ISE is proposing fee increases for Market Maker, Market Maker Plus, Non-ISE Market Maker, Firm Proprietary/Broker-Dealer, Professional Customer and Priority Customer orders in the Select Symbols, the resulting fees remain lower than the fees currently charged by PHLX for similar orders.
The Exchange believes that its proposal to assess a $0.37 per contract taker fee for Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer complex orders, and $0.39 per contract for Non-ISE Market Maker complex orders, in the Select Symbols (excluding SPY) is reasonable and equitably allocated because the fee is within the range of
The Exchange believes that its proposal to increase the taker fee to $0.38 per contract for ISE Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer complex orders, and to increase the taker fee to $0.40 per contract for Non-ISE Market Maker complex orders, in SPY is reasonable because the fee is within the range of fees assessed by other exchanges employing similar pricing schemes. For example, PHLX currently charges $0.39 per contract for removing liquidity in complex orders in SPY for Specialist, Market Maker, Firm, Broker-Dealer and Professional orders.
The Exchange believes that its proposal to assess a $0.37 per contract taker fee for Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer complex orders in the Non-Select Penny Pilot Symbols is reasonable and equitably allocated because the fee is within the range of fees assessed by other exchanges employing similar pricing schemes. For example, PHLX currently charges $0.22 per contract plus a payment for order flow fee of $0.25 per contract (applicable to customer orders), for a total rate of $0.47 per contract for adding and removing liquidity in complex orders for Specialist and Market Maker orders and charges anywhere from $0.25 per contract to $0.45 per contract for Firm, Broker-Dealer and Professional orders.
The Exchange believes it is reasonable and equitable to charge Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer complex orders a taker fee of $0.80 per contract, and to charge Non-ISE Market Maker orders a taker fee of $0.83 per contract for complex orders in the Non-Penny Pilot Symbols because the Exchange is seeking to recoup the cost associated with paying a higher per contract rebate to Priority Customers. In addition, the Exchange believes that charging Non-ISE Market Maker orders a higher rate than the fee charged to Market Maker, Firm Proprietary/Broker-Dealer and Professional Customer complex orders in the Non-Penny Pilot Symbols is appropriate and not unfairly discriminatory because Non-ISE Market Makers are not subject to many of the non-transaction based fees that these other categories of membership are subject to, e.g., membership fees, access fees, API/Session fees, market data fees, etc. Therefore, in this instance, it is appropriate and not unfairly discriminatory to assess a higher transaction fee on Non-ISE Market Makers because the Exchange incurs costs associated with these types of orders that are not recovered by non-transaction based fees paid by members.
The Exchange believes that increasing the fees applicable to orders executed in the complex order book when trading against Priority Customer orders in the Complex Quoting Symbols is appropriate given the functionality developed by the Exchange that allows market makers to quote in the complex order book. Specifically, the Exchange believes that its proposal to assess a maker fee of $0.37 per contract for the Complex Quoting Symbols when orders in these symbols interact with Priority Customer orders is reasonable and equitable because the fee is within the range of fees assessed by other exchanges employing similar pricing schemes. In fact, the proposed fee is considerably less than that charged by other exchanges. For example, the maker fee for a broker-dealer complex order in XOP at PHLX is $0.60 per contract
The Exchange believes that it is reasonable and equitable to provide a two cent discount to Market Makers on preferenced orders as an incentive for them to quote in the complex order book. Accordingly, Market Makers who remove liquidity in the Select Symbols, the Non-Select Penny Pilot Symbols, the Non-Penny Pilot Symbols, the Complex Quoting Symbols and SPY from the complex order book will be charged $0.02 less per contract when trading with Priority Customer orders that are preferenced to them. ISE notes that with this proposed fee change, the Exchange will continue to maintain a two cent differential that was previously in place.
The Exchange believes that it is reasonable and equitable to provide rebates for Priority Customer complex orders when these orders trade with Non-Priority Customer complex orders in the complex order book because
The Exchange also believes that it is reasonable and equitable to provide rebates for Priority Customer complex orders when these orders trade against quotes or orders in the regular orderbook. Again, the Exchange already provides this rebate and is now proposing to increase those rebate amounts through volume-based tiers. The Exchange believes paying these rebates would also attract additional order flow to the Exchange.
The complex order pricing employed by the Exchange has proven to be an effective pricing mechanism and attractive to Exchange participants and their customers. The Exchange believes that this proposed rule change will continue to attract additional complex order business in the symbols that are subject of this proposed rule change.
Moreover, the Exchange believes that the proposed fees are fair, equitable and not unfairly discriminatory because the proposed fees are consistent with price differentiation that exists today at other options exchanges. Additionally, the Exchange believes it remains an attractive venue for market participants to direct their order flow in the symbols that are subject to this proposed rule change as its fees are competitive with those charged by other exchanges for similar trading strategies. The Exchange operates in a highly competitive market in which market participants can readily direct order flow to another exchange if they deem fee levels at a particular exchange to be excessive. For the reasons noted above, the Exchange believes that the proposed fees are fair, equitable and not unfairly discriminatory.
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.
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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collections described below. The purpose of this notice is to allow 60 days for public comment in the
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The Department will accept comments from the public up to 60 days from August 15, 2012.
Comments and questions should be directed to Nicholas Memos, Office of Defense Trade Controls Policy, U.S. Department of State, who may be reached via the following methods:
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You must include the information collection title, the form number, and the OMB control number in the subject line of your message/letter.
Direct requests for additional information regarding the collection listed in this notice to Nicholas Memos, PM/DDTC, SA-1, 12th Floor, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, U.S. Department of State, Washington, DC 20522-0112, who may be reached via phone at (202) 663-2829, or via email at
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
The information submitted pursuant to this collection will be used to evaluate whether a particular defense article or defense service is covered by the U.S. Munitions List, and therefore is subject to export licensing jurisdiction of the Department of State. This collection may also be used to request a change in U.S. Munitions List category designation, request the removal a defense article from the U.S. Munitions List, or request the reconsideration of a previous commodity jurisdiction determination.
Office of the United States Trade Representative.
Notice.
Pursuant to section 181 of the Trade Act of 1974, as amended (19 U.S.C. 2241), the Office of the United States Trade Representative (USTR) is required to publish annually the National Trade Estimate Report on Foreign Trade Barriers (NTE). With this notice, the Trade Policy Staff Committee (TPSC) is requesting interested persons to submit comments to assist it in identifying significant barriers to U.S. exports of goods, services, and U.S. foreign direct investment for inclusion in the NTE.
The TPSC invites written comments from the public on issues that USTR should examine in preparing the NTE.
In 2013, USTR will once again release in conjunction with the NTE report two reports dealing with additional trade barriers—one on SPS measures and one on standards-related measures. USTR will invite written comments from the public on issues that should be examined in preparing those two reports through a separate Notice in the
Public comments are due not later than October 15, 2012.
Submissions should be made via the Internet at
Questions regarding the NTE or on submitting comments in response to this notice should be directed to Donald W. Eiss at (202) 395-3475.
The NTE sets out an inventory of the most important foreign barriers affecting U.S. exports of goods and services, U.S. foreign direct investment, and protection of intellectual property rights. The inventory facilitates U.S. negotiations aimed at reducing or eliminating these barriers. The report also provides a valuable tool in enforcing U.S. trade laws and strengthening the rules-based trading system. The 2012 NTE Report may be found on USTR's Internet Home Page (
To ensure compliance with the NTE's statutory mandate and the Obama Administration's commitment to focus on the most significant foreign trade barriers, USTR will be guided by the existence of active private sector interest in deciding which restrictions to include in the NTE.
(1) Import policies (e.g., tariffs and other import charges, quantitative
(2) Government procurement restrictions (e.g.,”buy national policies” and closed bidding);
(3) Export subsidies (e.g., export financing on preferential terms and agricultural export subsidies that displace U.S. exports in third country markets);
(4) Lack of intellectual property protection (e.g., inadequate patent, copyright, and trademark regimes);
(5) Services barriers (e.g., limits on the range of financial services offered by foreign financial institutions, regulation of international data flows, restrictions on the use of data processing, quotas on imports of foreign films, and barriers to the provision of services by professionals);
(6) Investment barriers (e.g., limitations on foreign equity participation and on access to foreign government-funded R&D consortia, local content, technology transfer and export performance requirements, and restrictions on repatriation of earnings, capital, fees, and royalties);
(7) Government-tolerated anticompetitive conduct of state-owned or private firms that restrict the sale or purchase of U.S. goods or services in the foreign country's markets;
(8) Trade restrictions affecting electronic commerce (e.g., tariff and non-tariff measures, burdensome and discriminatory regulations and standards, and discriminatory taxation); and
(9) Other barriers (e.g., barriers that encompass more than one category, such as bribery and corruption, or that affect a single sector).
In responding to this notice, commenters should place particular emphasis on any practices that may violate U.S. trade agreements. The TPSC is also interested in receiving new or updated information pertinent to the barriers covered in the 2012 NTE as well as information on new barriers. If USTR does not include in the NTE information that it receives pursuant to this notice, it will maintain the information for potential use in future discussions or negotiations with trading partners.
In order to ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to make on-line submissions, using the
To find this docket, enter the docket number in the “Enter Keyword or ID” window at the
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC”. The top of any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL”. Any person filing comments that contain business confidential information must also file in a separate submission a public version of the comments. The file name of the public version of the comments should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments. If a comment contains no business confidential information, the file name should begin with the character “P”, followed by the name of the person or entity submitting the comments.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
Air Traffic Procedures Advisory Committee. Federal Aviation Administration (FAA), DOT.
Notice.
The FAA is issuing this notice to advise the public of its environmental review of two standard terminal arrival route (STAR) procedures and two standard instrument departure (SID) procedures at Washington Dulles International Airport (IAD). As required by the National Environmental Policy Act, an evaluation has been performed on the two proposed STAR procedures and the two proposed SID procedures to determine the level of environmental review warranted. The FAA has elected to “Categorically Exclude from further environmental review” the proposed STAR procedures identified as GIBBZ (RNAV) STAR and DOCCS STAR and the proposed SID procedures identified
Effective upon publication. A Categorical Exclusion (Cat Ex) from environmental review does not require a formal public hearing or a formal public comment period prior to the Cat Ex becoming effective.
Ms. Lee Kyker, Environmental Specialist, Air Traffic Eastern Service Center, Operations Support Group, 1701 Columbia Ave., College Park, GA 30337.
Notice is hereby given that the FAA has elected to “Categorically Exclude from further environmental review” the proposed procedures as follows: GIBBZ (RNAV) STAR, DOCCS STAR, RNLDI (RNAV) SID (previously named BLUES ONE (RNAV) SID) and BUNZZ ONE (RNAV) SID.
This project consists of publishing procedures identified as the GIBBZ (RNAV) STAR, DOCCS STAR, RNLDI (RNAV) SID (previously named BLUES ONE (RNAV) SID) and BUNZZ ONE (RNAV) SID. On June 4, 2012, the BLUES (RNAV) SID was renamed to the RNLDI RNAV SID. RNAV facilitates more efficient design of airspace and procedures which collectively result in improved safety, access, predictability, and operational efficiency. Improved access and flexibility for point-to-point operations help enhance reliability and reduce delays by defining more precise terminal area procedures. The review process indicated that the proposed project will not adversely impact the environment. Consequently, the FAA has elected to “Categorically Exclude from further environmental review” the proposed Standard Terminal Arrival procedures, based upon compliance with FAA Order 1050.1E, § 311(i).
Air Traffic Procedures Advisory Committee. Federal Aviation Administration (FAA), DOT.
Notice.
The FAA is issuing this notice to advise the public of its environmental review of two standard terminal arrival route (STAR) procedures, and one conventional arrival procedure, at Ronald Reagan Washington National Airport (DCA). As required by the National Environmental Policy Act, an evaluation has been performed on the three proposed procedures to determine the level of environmental review warranted. The FAA has elected to “Categorically Exclude from further environmental review” the three proposed arrival procedures identified as FRDMM1 (RNAV), TRUPS1 (RNAV) and NUMMY.
Effective upon publication. A Categorical Exclusion (Cat Ex) from environmental review does not require a formal public hearing or a formal public comment period prior to the Cat Ex becoming effective.
Ms. Lee Kyker, Environmental Specialist, Air Traffic Eastern Service Center, Operations Support Group, 1701 Columbia Ave., College Park, GA 30337.
Notice is hereby given that the FAA has elected to “Categorically Exclude from further environmental review” the proposed arrival procedures as follows: FRDMM1 (RNAV), TRUPS1 (RNAV), and NUMMY.
This project consists of publishing RNAV arrival procedures identified as the FRDMM1 (RNAV) and the TRUPS1 (RNAV) and publishing the NUMMY conventional arrival procedure. RNAV facilitates more efficient design of airspace and procedures which collectively result in improved safety, access, predictability, and operational efficiency. Improved access and flexibility for point-to-point operations help enhance reliability and reduce delays by defining more precise terminal area procedures. The NUMMY is a conventional arrival procedure which accommodates the non-RNAV aircraft into the DC Metro area from the west. The review process indicated that the proposed project will not adversely impact the environment. Consequently, the FAA has elected to “Categorically Exclude from further environmental review” the proposed procedures, based upon compliance with FAA Order 1050.1E, § 311(i).
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by September 14, 2012.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA-2012-0083.
Owen Lindauer, Ph.D., 202-366-2655, Office of Program Development and Environmental Review (HEPE-10), Office of Planning Environment and Realty, Federal Highway Administration, Department of Transportation, 1200 New Jersey Ave.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before September 14, 2012.
Comments should refer to docket number MARAD-2012-0083. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel Calypso is:
The complete application is given in DOT docket MARAD-2012-0083 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before September 14, 2012.
Comments should refer to docket number MARAD-2012-0084. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel CHAT DE MER is:
The complete application is given in DOT docket MARAD-2012-0084 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before September 14, 2012.
Comments should refer to docket number MARAD-2012-0082. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-0903, Email
As described by the applicant the intended service of the vessel KUMATAGE is:
The complete application is given in DOT docket MARAD-2012-0082 at
Anyone is able to search the electronic form of all comments
By Order of the Maritime Administrator.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before October 15, 2012 to be assured of consideration.
Direct all written comments to Yvette. B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Joel Goldberger, 202-927-9368, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information, unless the collection of information displays a valid OMB control number.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the National Research Advisory Council will hold a meeting on Wednesday, September 19, 2012, in conference room 23, at 131 M Street NE., Washington, DC. The meeting will convene at 9:30 a.m. and end at 3:30 p.m. The meeting is open to the public.
The purpose of the Council is to provide external advice and review for VA's research mission. The agenda will include a review of the VA research portfolio and a summary of special projects. The Council will also provide feedback on the direction/focus of VA's research initiatives.
No time will be allocated at this meeting for receiving oral presentations from the public. Interested members of the public may submit written statements for the Council's review to Margaret Hannon, Designated Federal
By Direction of the Secretary.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Supplemental notice of proposed rulemaking.
The U.S. Department of Energy (DOE) proposes to amend its test procedures for residential dishwashers to update certain obsolete dishware, flatware and food items, make minor amendments to the definition of the normal cycle, and update the ambient temperature and preconditioning requirements as well as the industry test method referenced in DOE's test procedure. DOE also proposes to add water pressure, drain height, rack position, loading, rinse aid container, and soil preparation specifications to the dishwasher test procedure. DOE additionally proposes to amend the test procedures for both dishwashers and conventional cooking products for the measurement of energy use in fan-only mode.
DOE will accept comments, data, and information regarding this SNOPR submitted no later than August 30, 2012. See section IV, “Public Participation,” for details.
Any comments submitted must identify the SNOPR for Test Procedures for Residential Dishwashers and Conventional Cooking Products, and provide docket number EERE-2010-BT-TP-0039 and/or Regulatory Information Number (RIN) 1904-AC01. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).
A link to the docket web page can be found at:
For further information on how to submit a comment or review other public comments and the docket, contact Ms. Brenda Edwards at (202) 586-2945 or email:
Mr. Wes Anderson, 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) 586-7335. Email:
Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-7796. Email:
For further 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:
Title III, Part B
Under the Act, this program consists essentially of four parts: (1) Testing, (2) labeling, (3) establishing Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use: (1) As the basis for certifying to DOE that their products comply with applicable energy conservation standards adopted pursuant to EPCA, and (2) for making representations about the efficiency of those products. (42 U.S.C. 6293(c); 6295(s)) Similarly, DOE must use these test procedures in any enforcement action to determine whether the products comply with these energy conservation standards. (42 U.S.C. 6295(s))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides in relevant part that test procedures be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use, as determined by the Secretary of Energy, and not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2))
DOE's test procedure for dishwashers is found in the Code of Federal Regulations (CFR) at 10 CFR part 430, subpart B, appendix C. DOE's test procedures for conventional ranges, cooktops, and ovens (including microwave ovens, which are considered separately from the conventional cooking products covered in today's rule) are found at 10 CFR part 430, subpart B, appendix I. For background on the establishment of the first DOE test procedures for dishwashers and conventional cooking products, subsequent amendments to those procedures, and the rulemaking history for today's supplemental notice of proposed rulemaking (SNOPR), please see the SNOPR issued on May 25, 2012. (77 FR 31444) (May 2012 SNOPR). In today's SNOPR, DOE considers comments received on the dishwasher test procedure in response to the May 2012 SNOPR and during a public meeting held June 1, 2012 (June 2012 Public Meeting). DOE will provide further response to comments received on the May 2012 SNOPR, as appropriate, in any final rule to establish amended test procedures.
In the May 2012 SNOPR, DOE proposed to update obsolete flatware and detergent specifications. DOE has determined that certain additional flatware, dishware, and food items used in the test procedure are also obsolete, or has received comments in this test procedure rulemaking indicating that the items may be obsolete. These items include: The cup and saucer, the bread and butter plate, the fruit bowl, the dinner fork, the salad fork, the teaspoon, the knife, the margarine, and the coffee. In today's SNOPR, DOE proposes to use the items listed in Table I in place of the obsolete or potentially obsolete items. DOE further proposes that use of these items be required 30 days after publication of any final amended test procedures and seeks comment on whether the specified items can be procured in 30 days.
In the May 2012 SNOPR, DOE stated that the current DOE dishwasher test procedure defines the normal cycle as “the cycle type recommended by the manufacturer for completely washing a full load of normally soiled dishes including the power-dry feature.” (Section 1.6 of 10 CFR part 430, subpart B, appendix C) DOE noted that it is aware that certain dishwashers have multiple wash and/or drying temperature options for the cycle setting required under the normal cycle definition. For these dishwashers, DOE proposed to clarify in the definition that the normal cycle shall include the wash and drying temperature options recommended by the manufacturer for completely washing a full load of normally soiled dishes including the power-dry feature. DOE sought comment on the wash and drying temperature options to be selected in the case that the cycle setting required under the normal cycle definition has multiple wash and/or drying temperature options but the manufacturer does not provide such a recommendation.
In response to the May 2012 SNOPR, commenters suggested that in the absence of a manufacturer recommendation concerning temperature options for the normal cycle, the highest energy consumption temperature options should be selected. This approach is consistent with the approach taken in DOE's recent rulemaking to amend the test procedure for residential clothes washers (77 FR 13888, Mar. 7, 2012). In that rulemaking, DOE amended part (B) of the definition of energy test cycle to state that where multiple alternative selections offer a wash/rinse temperature selection for which a temperature use factor has been developed and that is not available on the cycle recommended by the manufacturer for washing cotton or linen clothes described in part (A) of the energy test cycle definition, the alternate cycle selection with the highest energy consumption for that TUF must be included in the energy test cycle. For consistency with the approach taken in the clothes washer test procedure rulemaking, and to ensure that the test procedure does not
DOE proposed in the May 2012 SNOPR to maintain the current room ambient air temperature requirement of 75 degrees Fahrenheit (°F) ±5 °F, while allowing greater tolerance on the room air temperature during standby mode and off mode testing in accordance with provisions incorporated by reference from the International Electrotechnical Commission (IEC) Standard 62301, “Household electrical appliances—Measurement of standby power”, Edition 2.0 2011-01 (IEC Standard 62301). DOE received comments that the more stringent active mode ambient temperature conditions should apply to all testing, including standby mode and active mode testing performed separately from active mode testing to ensure accurate, repeatable, and reproducible results. Commenters also stated that the test procedure should clarify that the tolerances specified indicate the allowable limits of variation in temperature, but do not permit the deliberate variation with those limits. Commenters also suggested that DOE tighten the tolerance on the ambient temperature to ± 2 °F, because a 1 °F ambient temperature change can result in a 1.5 kilowatt-hour (kWh) change in estimated annual energy use (EAEU), although the commenters acknowledged that this tighter tolerance could be burdensome for certain manufacturers or laboratories.
In specifying tolerances in its test procedures, DOE provides a range of temperatures under which the test results are considered valid, regardless of the reasons for why a particular temperature within the range was selected or achieved. Therefore, DOE is not proposing to state that the test should be conducted at the nominal center of the ambient temperature range. DOE recognizes the impact of ambient temperature on the active mode measurement, however, and as an alternative to the ±5 °F tolerance previously proposed, DOE proposes to tighten the tolerance to ±2 °F. DOE seeks comment on the capabilities of test laboratories to maintain this tolerance and the burden associated with it. DOE is not proposing in today's SNOPR to require that standby mode and off mode testing be conducted under the same ambient temperature as active mode testing because no data are available to suggest that the standby mode and off mode power of residential dishwashers varies significantly within the allowable ambient temperature range of IEC Standard 62301, and because this approach would increase the burden for those manufacturers or laboratories that choose to conduct standby mode and off mode testing separately from active mode testing.
DOE proposed in the May 2012 SNOPR to require that the preconditioning cycle for soil-sensing dishwashers be run using the cycle setting selected for active mode, and that the power supply to the unit be continuously maintained throughout testing, including after the preconditioning cycle and in between all energy test cycles, to maintain calibration of the turbidity sensor. Comments received from manufacturers indicated that certain dishwashers may be designed to self-calibrate in one cycle, but may sometimes require an additional cycle to perform this calibration. In addition, commenters noted that two preconditioning cycles would help to clean out residual dirt from the machine prior to sensor calibration and energy testing. DOE agrees that two preconditioning cycles would ensure a clean unit at the start of testing and proper sensor calibration in soil-sensing dishwashers that may, under certain conditions, not self-calibrate in one cycle. Therefore, in today's SNOPR, DOE proposes two preconditioning cycles, clarifying that the second preconditioning cycle is to be used to determine detergent dosing. DOE seeks comment on the burden associated with requiring an additional preconditioning cycle.
In the May 2012 SNOPR, DOE referenced AHAM's current dishwasher test method, DW-1-2009, in the discussion of its proposal to update obsolete flatware, but did not propose to incorporate that updated test method. In today's SNOPR, DOE proposes to incorporate by reference the updated industry test standard AHAM DW-1-2009, which upon acceptance by ANSI is designated as ANSI/AHAM DW-1-2010, American National Standard, “Household Electric Dishwashers.” DOE seeks comment on whether the incorporation of this standard will affect the measured energy use of dishwashers tested according to DOE's test procedure, and if so the magnitude of that effect. DOE will determine, as a result of these comments, whether to retain the current industry standard or update the standard to ANSI/AHAM DW-1-2010.
In the May 2012 SNOPR, DOE proposed that the water supply pressure during testing be maintained at 35 ±2.5 pounds per square in gauge (psig) when the water is flowing. DOE received comments that, for repeatability and reproducibility, the duration of the transient pressure drop when the water supply valve first opens should be minimized. Commenters suggested allowing a maximum time of 2 seconds to ensure that the water is flowing into the dishwasher at the proper pressure during the test. DOE agrees that transient pressure variations should be minimized for reasons of test stability and reproducibility, and, based on commenters indication of laboratory capabilities, proposes to require that proper pressure be achieved within 2 seconds. DOE seeks comment on this requirement, in particular whether this requirement can be reasonably achieved in all laboratories.
Drain height is not currently specified in the dishwasher test procedure, and DOE received comments that such a specification should be added to reduce testing variability. The commenters recommended that the drain height should be specified according to the manufacturer's installation instructions. In the absence of such instructions, a drain height of 20 inches would be specified, which according to the commenters is a standard height. DOE agrees that the use of manufacturer's instructions for drain height, or a standard height in the absence of such information, would improve reproducibility of the test and is proposing in today's SNOPR corresponding amendments to the dishwasher test procedure, including a standard drain height of 20 inches. DOE seeks comment and information on the standard drain height, and may adjust the value accordingly.
Commenters on the May 2012 SNOPR noted that the dishwasher test procedure does not specify an upper rack position or where the soiled dishes are placed on the racks, and recommended adjusting the rack position and loading the soiled dishware according to the manufacturer's recommendation. DOE concludes that such clarifications would improve test repeatability and reproducibility, and proposes such
The dishwasher test procedure precludes the use of rinse aid during testing, including preconditioning. DOE was notified by commenters that some laboratories may be filling the rinse aid container in certain dishwashers with water during testing to prevent the energy consumption of an indicator light that is energized when the rinse aid level is low. However, as one commenter noted, the thermal mass of the water in the rinse aid container would necessitate additional water heating energy during the test. For consistency in testing, therefore, DOE clarifies in today's SNOPR that the rinse aid container should not be filled with water for energy testing. DOE welcomes comment on this proposal.
DOE received comments on the May 2012 SNOPR stating that DOE should clarify in the dishwasher test procedure the length of time that soils may sit before they are applied to the dishware to prevent stiffening and settling. DOE therefore proposes in today's SNOPR that the test procedure require the potatoes be used within 30 minutes of preparation and the reconstituted milk be allowed to be stored for use over the course of 1 day, as recommended by commenters. DOE's proposal includes provisions for reconstituting the milk. DOE also proposes to adopt the commenters' recommendation that the 1-pound packages of ground beef shall be stored frozen for no more than 6 months.
In the May 2012 SNOPR, DOE proposed a test method to measure the energy use of dishwashers and cooking products in fan-only mode. DOE received comments on the May 2012 SNOPR stating that fan-only mode energy use should be measured only if it is not a user-selectable item. Commenters also indicated that DOE's proposal for measuring the energy use of fan-only mode at the end of each test cycle would create a considerable test burden. In response to these comments, DOE continues to consider the approach set forth in the May 2012 SNOPR but is also considering an alternative approach. Under this approach, the energy use of fan-only mode would be measured only if it is not a user-selectable item. DOE understands that this change will not significantly alter the May 2012 proposal because fan-only mode is almost always not a user-selectable item. For cooking products, fan-only mode runs automatically for safety reasons, and for dishwashers, DOE understands that fan-only mode energy use is not typically selected independently but would be a function of the drying option selected as part of the test cycle. Also under the alternative approach, the energy use of fan-only mode would be measured for a brief time period, such as 10 minutes, and then extrapolated over the length of the entire fan-only mode cycle, which DOE research suggested may range from 10 minutes to several hours for both dishwashers and conventional ovens. To adopt this alternative approach, however, DOE would need additional, representative data on the length of these cycle times, so that the extrapolation provides an accurate measurement of the energy use during the fan-only mode cycle. DOE therefore seeks representative data on the length of the fan-only mode cycle for dishwashers and conventional cooking products. In the absence of such data, DOE may adopt the proposal set forth in the May 2012 SNOPR.
In the May 2012 SNOPR, DOE inadvertently proposed in section 4.4.2 of the dishwasher test procedure language that refers to section 1.11 of the test procedure. DOE corrects that proposal in today's SNOPR to properly refer to section 1.13.
Other than the specific amendments newly proposed in today's SNOPR, DOE continues to propose the test procedure amendments originally included in the December 2010 NOPR and the September 2011 SNOPR. For the reader's convenience, DOE has reproduced in this SNOPR the entire body of proposed regulatory text from the December 2010 NOPR and September 2011 and May 2012 SNOPRs, further amended as appropriate according to today's proposals. DOE's supporting analysis and discussion for the portions of the proposed regulatory text not affected by this SNOPR may be found in the December 2010 NOPR (75 FR 75290 (Dec. 2, 2010)), the September 2011 SNOPR (76 FR 58346 (Sept. 20, 2011)), and the May 2012 SNOPR (77 FR 31444 (May 25, 2012)).
EPCA requires test procedures to be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use, and not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
For the reasons stated in the December 2010 NOPR and September 2011 and May 2012 SNOPRs, DOE tentatively concluded that the amended test procedures would produce test results that measure the standby mode and off mode power consumption during representative use, and that the test procedures would not be unduly burdensome to conduct. DOE continues to make these assertions for today's SNOPR because the substituted items replace items that DOE determined to obsolete, or has received comments in this test procedure rulemaking process that the items are obsolete. The replacement items are intended to be inexpensive, representative of commonly-found items, and in some cases already used by manufacturers in testing dishwashers. In addition, DOE is proposing a definition of normal cycle for dishwashers supported by manufacturers because it will lead to consistent, representative results. The updated industry test method for dishwashers was also supported by manufactures because it will lead to, among other things, reduced test variation, as would the proposals for consistent preparation time for the soils used in the test procedure, the positioning of the dishwasher rack during testing, the method of loading, the tighter tolerances on ambient temperature, the added specifications for water pressure measurement and drain height, and the clarifications for the rinse aid container. Finally, DOE is proposing an alternative method of measuring the energy use in fan-only mode for dishwashers and cooking products that could significantly decrease overall testing time.
DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the December 2010 NOPR and September 2011 and May 2012 SNOPRs remain unchanged for this SNOPR. These determinations are set forth in the December 2010 NOPR (75 FR 75290, 75317-19 (Dec. 2, 2010)), the September 2011 SNOPR (76 FR 58346, 58355 (Sept. 20, 2011)), and the May 2012 SNOPR (77 FR 31444, May 25, 2012). An update to the Regulatory Flexibility Act certification is set forth below.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's supplemental proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE tentatively concluded that the December 2010 NOPR and September 2011 SNOPR would not have a significant impact on a substantial number of small entities, and today's SNOPR contains no revisions to that proposal that would result in a significant impact on a substantial number of small entities. The updates to the factual basis for this certification are as follows:
The Small Business Administration (SBA) considers a business entity to be small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes are established by the North American Industry Classification System (NAICS). The threshold number for NAICS classification code 335228, titled “Other Major Household Appliance Manufacturing,” is 500 employees; this classification specifically includes residential dishwasher manufacturers. Additionally, the threshold number for NAICS classification code 335221, titled “Household Cooking Appliance Manufacturing,” is 750 employees; this classification specifically includes manufacturers of residential conventional cooking products. The threshold number for NAICS classification code 335211, titled “Electric Housewares and Household Fan Manufacturing,” is 750 employees; this classification specifically includes manufacturers of dehumidifiers.
DOE surveyed the AHAM member directory to identify manufacturers of residential dishwashers and conventional cooking products. DOE then consulted publicly-available data, purchased company reports from vendors such as Dun and Bradstreet, and contacted manufacturers, where needed, to determine if they meet the SBA's definition of a “small business manufacturing facility” and have their manufacturing facilities located within the United States. Based on this analysis, DOE estimates that there are no small businesses that manufacture dishwashers and two small businesses that manufacture conventional cooking products. Only one provision of today's supplemental proposal would affect manufacturers of conventional cooking products, the alternative proposal to measure the energy use in fan-only mode. Under today's supplemental proposal, that energy use would not be measured at the end of each test cycle. Rather, the energy use in fan-only mode would be measured for a brief period, such as 10 minutes, and then extrapolated over the duration of the entire cycle. This proposal could significantly decrease the test burden for manufacturers of conventional cooking products.
For these reasons, DOE continues to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b). DOE seeks comment on the updates to the certification that are set forth above.
DOE will accept comments, data, and information regarding this SNOPR no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. Email submissions are preferred. If you submit via mail or hand delivery, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
The Secretary of Energy has approved publication of this supplemental notice of proposed rulemaking.
Administrative practice and procedure, Buildings and facilities, Business and industry, Energy conservation, Grant programs-energy, Housing, Reporting and recordkeeping requirements, Technical assistance.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
For the reasons stated in the preamble, DOE proposes to amend parts 429 and 430 of title 10 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 429 continues to read as follows:
42 U.S.C. 6291-6317.
2. Section 429.23 is amended by revising paragraph (a)(2)(ii) introductory text to read as follows:
(a) * * *
(2) * * *
(ii) Any represented value of the energy factor, integrated energy factor, or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
3. Section 429.36 is amended by revising paragraph (a)(2)(ii) introductory text to read as follows:
(a) * * *
(2) * * *
(ii) Any represented value of the energy factor, integrated energy factor, or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
4. The authority citation for part 430 continues to read as follows:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
5. Section 430.3 is amended by:
a. Redesignating paragraphs (g)(1) through (5) as (g)(2) through (6);
b. Adding new paragraph (g)(1);
c. Revising newly redesginated paragraph (g)(2); and
d. Adding paragraph (l)(2).
The additions and revisions read as follows:
(g) * * *
(1) ANSI/AHAM DH-1-2008 (“DH-1-2008”),
(2) ANSI/AHAM DW-1-2010, American National Standard, Household Electric Dishwashers, approved September 10, 2010, IBR approved for Appendix C to subpart B and § 430.32.
(l) * * *
(2) IEC Standard 62301 (“IEC 62301”),
6. Section 430.23 is amended by revising paragraphs (c), (i), and (z) to read as follows:
(c)
(i) When cold water (50 °F) is used,
(A) For dishwashers having a truncated normal cycle as defined in section 1.23 of appendix C to this subpart, EAOC = (D
(B) For dishwashers having a truncated normal cycle as defined in section 1.23 of appendix C to this subpart, EAOC = (D
(C) For dishwashers not having a truncated normal cycle, EAOC = (D
(D) For dishwashers not having a truncated normal cycle, EAOC = (D
(E) Manufacturers calculating EAOC pursuant to paragraph (c)(1)(i)(A) of this section should calculate EAEU pursuant to paragraph (c)(2)(i)(A) of this section. Manufacturers calculating EAOC pursuant to paragraphs (c)(1)(i)(B) of this section should calculate EAEU pursuant to paragraph (c)(2)(i)(B) of this section. Manufacturers calculating EAOC pursuant to paragraph (c)(1)(i)(C) of this section should calculate EAEU pursuant to paragraph (c)(2)(ii)(A) of this section. Manufacturers calculating EAOC pursuant to paragraph (c)(1)(i)(D) of this section should calculate EAEU pursuant to paragraph (c)(2)(ii)(B) of this section.
(ii) When electrically-heated water (120 °F or 140 °F) is used,
(A) For dishwashers having a truncated normal cycle as defined in section 1.23 of appendix C to this subpart, EAOC = (D
(B) For dishwashers having a truncated normal cycle as defined in section 1.23 of appendix C to this subpart, EAOC = (D
(C) For dishwashers not having a truncated normal cycle, EAOC = (D
(D) For dishwashers not having a truncated normal cycle,
EAOC = (D
(E) Manufacturers calculating EAOC pursuant to paragraph (c)(1)(ii)(A) of this section should calculate EAEU pursuant to paragraph (c)(2)(i)(A) of this section. Manufacturers calculating EAOC pursuant to paragraphs (c)(1)(ii)(B) of this section should calculate EAEU pursuant to paragraph (c)(2)(i)(B) of this section. Manufacturers calculating EAOC pursuant to paragraph (c)(1)(ii)(C) of this section should calculate EAEU pursuant to paragraph (c)(2)(ii)(A) of this section. Manufacturers calculating EAOC pursuant to paragraph (c)(1)(ii)(D) of this section should calculate EAEU pursuant to paragraph (c)(2)(ii)(B) of this section.
(iii) When gas-heated or oil-heated water is used,
(A) For dishwashers having a truncated normal cycle as defined in section 1.23 of appendix C to this subpart, EAOC
(B) For dishwashers having a truncated normal cycle as defined in section 1.23 of appendix C to this subpart,
EAOC
(C) For dishwashers not having a truncated normal cycle, EAOC
(D) For dishwashers not having a truncated normal cycle, EAOC
(E) Manufacturers calculating EAOC pursuant to paragraph (c)(1)(iii)(A) of this section should calculate EAEU pursuant to paragraph (c)(2)(i)(A) of this section. Manufacturers calculating EAOC pursuant to paragraphs (c)(1)(iii)(B) of this section should calculate EAEU pursuant to paragraph (c)(2)(i)(B) of this section. Manufacturers calculating EAOC pursuant to paragraph (c)(1)(iii)(C) of this section should calculate EAEU pursuant to paragraph (c)(2)(ii)(A) of this section. Manufacturers calculating EAOC pursuant to paragraph (c)(1)(iii)(D) of this section should calculate EAEU pursuant to paragraph (c)(2)(ii)(B) of this section.
(2) The estimated annual energy use, EAEU, expressed in kilowatt-hours per year must be rounded to the nearest kilowatt-hour per year and is defined as follows:
(i) For dishwashers having a truncated normal cycle as defined in section 1.23 of appendix C to this subpart,
(A) EAEU = (M−(E
(I) before (
(II) before the compliance date of any amended standards to demonstrate compliance.
(B) EAEU = (M + M
(I) on or after (
(II) on or after the compliance date of any amended standards to demonstrate compliance.
(C) Manufacturers calculating EAEU pursuant to paragraph (c)(2)(i)(A) of this section should calculate EAOC pursuant to paragraph (c)(1)(i)(A), (c)(1)(ii)A, or (c)(1)(iii)(A) of this section, as appropriate. Manufacturers calculating EAEU pursuant to paragraph (c)(2)(i)(B) of this section should calculate EAOC pursuant to paragraph (c)(1)(i)(B), (c)(1)(ii)(B), or (c)(1)(ii)(B) of this section, as appropriate.
(ii) For dishwashers not having a truncated normal cycle:
(A) EAEU = (M + W) × N + S may be used for units manufactured:
(I) before (
(II) before the compliance date of any amended standards to demonstrate compliance.
(B) EAEU = (M + M
(I) on or after (
(II) on or after the compliance date of any amended standards to demonstrate compliance.
(C) Manufacturers calculating EAEU pursuant to paragraph (c)(2)(ii)(A) of this section should calculate EAOC pursuant to paragraph (c)(1)(i)(C), (c)(1)(ii)(C), or (c)(1)(iii)(C) of this section, as appropriate. Manufacturers calculating EAEU pursuant to paragraph (c)(2)(ii)(B) of this section should calculate EAOC pursuant to paragraph (c)(1)(i)(D), (c)(1)(ii)(D), or (c)(1)(iii)(D) of this section, as appropriate.
(3) The water consumption, V, and the sum of the water consumption, V, and the water consumption during water softener regeneration, V
(i) Water consumption, V, may be measured for units manufactured:
(A) Before (
(B) Before the compliance date of any amended standards to demonstrate compliance.
(ii) Manufacturers calculating water consumption pursuant to paragraph (c)(3)(i) of this section should calculate EAOC as described in paragraph (c)(1)(i)(A), (c)(1)(i)(C), (c)(1)(ii)(A), (c)(1)(ii)(C), (c)(1)(iii)(A), or (c)(1)(iii)(C) of this section, as appropriate. Manufacturers calculating water consumption pursuant to paragraph (c)(3)(i) of this section should calculate EAUE as described in paragraph (c)(2)(i)(A) or (c)(2)(ii)(A) of this section, as appropriate.
(iii) The sum of the water consumption, V, and the water consumption during water softener regeneration, V
(A) on or after (
(B) on or after the compliance date of any amended standards to demonstrate compliance.
(C) Manufacturers calculating water consumption pursuant to paragraph (c)(3)(iii) of this section should calculate EAOC as described in paragraph (c)(1)(i)(B), (c)(1)(i)(D), (c)(1)(ii)(B), (c)(1)(ii)(D), (c)(1)(iii)(B), or (c)(1)(iii)(D) of this section, as appropriate. Manufacturers calculating water consumption pursuant to paragraph (c)(3)(i) of this section should calculate EAUE as described in paragraph (c)(2)(i)(B) or (c)(2)(ii)(B) of this section, as appropriate.
(4) Other useful measures of energy consumption for dishwashers are those which the Secretary determines are likely to assist consumers in making purchasing decisions and which are derived from the application of appendix C to this subpart.
(i)
(i) The total integrated annual electrical energy consumption for any electrical energy usage, in kilowatt-hours (kWhs) per year, times the representative average unit cost for electricity, in dollars per kWh, as provided pursuant to section 323(b)(2) of the Act; plus
(ii) The total annual gas energy consumption for any natural gas usage, in British thermal units (Btus) per year, times the representative average unit cost for natural gas, in dollars per Btu, as provided pursuant to section 323(b)(2) of the Act; plus
(iii) The total annual gas energy consumption for any propane usage, in Btus per year, times the representative average unit cost for propane, in dollars per Btu, as provided pursuant to section 323(b)(2) of the Act. The total annual energy consumption for conventional ranges, conventional cooking tops, and conventional ovens shall be as determined according to sections 4.3, 4.2.2, and 4.1.2, respectively, of appendix I to this subpart. For conventional gas cooking tops, total integrated annual electrical energy consumption shall be equal to E
(2) The cooking efficiency for conventional cooking tops and conventional ovens shall be the ratio of the cooking energy output for the test to the cooking energy input for the test, as determined according to sections 4.2.1 and 4.1.3, respectively, of appendix I to this subpart. The final cooking efficiency values shall be rounded off to three significant digits.
(3) [Reserved]
(4) The energy factor for conventional ranges, conventional cooking tops, and conventional ovens shall be the ratio of the annual useful cooking energy output to the total annual energy input, as determined according to sections 4.3, 4.2.3.1, and 4.1.4.1, respectively, of appendix I to this subpart. The final energy factor values shall be rounded off to three significant digits.
(5) The integrated energy factor for conventional ranges, conventional cooking tops, and conventional ovens shall be the ratio of the annual useful
(6) There shall be two estimated annual operating costs, two cooking efficiencies, and two energy factors for convertible cooking appliances—
(i) An estimated annual operating cost, a cooking efficiency, and an energy factor which represent values for those three measures of energy consumption for the operation of the appliance with natural gas; and
(ii) An estimated annual operating cost, a cooking efficiency, and an energy factor which represent values for those three measures of energy consumption for the operation of the appliance with LP-gas.
(7) There shall be two integrated energy factors for convertible cooking appliances—
(i) An integrated energy factor which represents the value for this measure of energy consumption for the operation of the appliance with natural gas; and
(ii) An integrated energy factor which represents the value for this measure of energy consumption for the operation of the appliance with LP-gas.
(8) The estimated annual operating cost for convertible cooking appliances which represents natural gas usage, as described in paragraph (i)(6)(i) of this section, shall be determined according to paragraph (i)(1) of this section using the total annual gas energy consumption for natural gas times the representative average unit cost for natural gas.
(9) The estimated annual operating cost for convertible cooking appliances which represents LP-gas usage, as described in paragraph (i)(6)(ii) of this section, shall be determined according to paragraph (i)(1) of this section using the representative average unit cost for propane times the total annual energy consumption of the test gas, either propane or natural gas.
(10) The cooking efficiency for convertible cooking appliances which represents natural gas usage, as described in paragraph (i)(6)(i) of this section, shall be determined according to paragraph (i)(2) of this section when the appliance is tested with natural gas.
(11) The cooking efficiency for convertible cooking appliances which represents LP-gas usage, as described in paragraph (i)(6)(ii) of this section, shall be determined according to paragraph (i)(2) of this section, when the appliance is tested with either natural gas or propane.
(12) The energy factor for convertible cooking appliances which represents natural gas usage, as described in paragraph (i)(6)(i) of this section, shall be determined according to paragraph (i)(4) of this section when the appliance is tested with natural gas.
(13) The integrated energy factor for convertible cooking appliances which represents natural gas usage, as described in paragraph (i)(7)(i) of this section, shall be determined according to paragraph (i)(5) of this section when the appliance is tested with natural gas.
(14) The energy factor for convertible cooking appliances which represents LP-gas usage, as described in paragraph (i)(6)(ii) of this section, shall be determined according to paragraph (i)(4) of this section when the appliance is tested with either natural gas or propane.
(15) The integrated energy factor for convertible cooking appliances which represents LP-gas usage, as described in paragraph (i)(7)(ii) of this section, shall be determined according to paragraph (i)(5) of this section when the appliance is tested with natural gas or propane.
(16) Other useful measures of energy consumption for conventional ranges, conventional cooking tops, and conventional ovens shall be those measures of energy consumption which the Secretary determines are likely to assist consumers in making purchasing decisions and which are derived from the application of appendix I to this subpart.
(z)
(2) The integrated energy factor for dehumidifiers, expressed in L/kWh, shall be determined according to paragraph 5.2 of appendix X to this subpart.
7. Appendix C to subpart B of part 430 is amended:
a. By revising the introductory text after the appendix heading;
b. By revising section 1, Definitions;
c. By revising section 2, Testing Conditions;
d. In section 3. Instrumentation, by:
1. Revising section 3.5; and
2. Adding section 3.8;
e. By revising section 4, Test Cycle and Measurements: and
f. By revising section 5, Calculation of Derived Results From Test Measurements.
The additions and revisions read as follows:
The procedures and calculations that refer to the combined low-power mode, fan-only mode, and water softener energy consumption (
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
2.1
2.2
2.2.1
2.2.2
2.2.3
2.3
2.3.1
2.3.2
2.3.3
2.4
2.5
2.5.1
2.5.2
2.6
2.6.1
2.6.1.1 If the unit is a water-softening dishwasher, it must be tested first on the normal cycle without a test load for water softener regeneration, as specified in section 4.1 of this Appendix. The water softener setting shall be selected according to manufacturer instructions for a water hardness of 217 mg/L (217 ppm or 12.6 grains per gallon). Ensure that dishwasher salt is supplied to the water softener system according to the manufacturer's instructions.
2.6.1.2 All non-soil-sensing dishwashers to be tested according to section 4.2 of this Appendix at a nominal inlet temperature of 140 °F must then be tested on the normal cycle and truncated normal cycle without a test load if the dishwasher does not heat water in the normal cycle. Water-softening dishwashers shall be tested using the lowest water hardness water softener setting.
2.6.2
2.6.2.1 If the unit is a water-softening dishwasher, it must be tested first without a test load on the normal cycle for water softener regeneration, as specified in section 4.1 of this Appendix. The water softener setting shall be selected according to manufacturer instructions for a water hardness of 217 mg/L (217 ppm or 12.6 grains per gallon). Ensure that dishwasher salt is supplied to the water softener system according to the manufacturer's instructions.
2.6.2.2 All non-soil-sensing dishwashers to be tested at a nominal inlet temperature of 50 °F or 120 °F must then be tested according to section 4.2 of this Appendix on the normal cycle with a clean load of eight place settings plus six serving pieces, as specified in section 2.7 of this Appendix. If the capacity of the dishwasher, as stated by the manufacturer, is less than eight place settings, then the test load must be the stated capacity. Water-softening dishwashers shall be tested using the lowest water hardness water softener setting.
2.6.3
2.6.3.1 Water-softening dishwashers must be tested first without a test load on the normal cycle for water softener regeneration, as specified in section 4.1 of this Appendix. The water softener setting shall be selected according to manufacturer instructions for a water hardness of 217 mg/L (217 ppm or 12.6 grains per gallon). Ensure that dishwasher salt is supplied to the water softener system according to the manufacturer's instructions.
2.6.3.2 All soil-sensing dishwashers shall then be tested according to section 4.2 of this Appendix. If soil-sensing is available as an option in the normal cycle, the normal cycle shall be selected, with the soil-sensing option if necessary. If soil-sensing is not available for the normal cycle, the cycle type that uses the soil-sensing system, and contains all the elements of a normal cycle including the power-dry feature (if such a feature is provided) shall be selected. The dishwasher shall be tested first for the sensor heavy response, then tested for the sensor medium response, and finally for the sensor light response with the following combinations of soiled and clean test loads. Water-softening dishwashers shall be tested using the lowest water hardness water softener setting.
2.6.3.2.1 For tests of the sensor heavy response, as defined in section 1.16 of this Appendix:
(A) For standard dishwashers, the test unit is to be loaded with a total of eight place settings plus six serving pieces as specified in section 2.7 of this Appendix. Four of the eight place settings, except for the flatware, must be soiled according to sections 5.3 through 5.7 of ANSI/AHAM DW-1 (incorporated by reference, see § 430.3) and as additionally specified in section 2.7.5 of this Appendix, while the remaining place settings, serving pieces, and all flatware are not soiled. The test load is to be loaded in the dishwasher according to section 5.8 of ANSI/AHAM DW-1.
(B) For compact dishwashers, the test unit is to be loaded with four place settings plus six serving pieces as specified in section 2.7 of this Appendix. Two of the four place settings, except for the flatware, must be soiled according to sections 5.3 through 5.7 of ANSI/AHAM DW-1 and as additionally specified in section 2.7.5 of this Appendix, while the remaining place settings, serving pieces, and all flatware are not soiled. The test load is to be loaded in the dishwasher according to section 5.8 of ANSI/AHAM DW-1.
2.6.3.2.2 For tests of the sensor medium response, as defined in section 1.18 of this Appendix:
(A) For standard dishwashers, the test unit is to be loaded with a total of eight place settings plus six serving pieces as specified in section 2.7 of this Appendix. Two of the eight place settings, except for the flatware must be soiled according to sections 5.3 through 5.7 of ANSI/AHAM DW-1 (incorporated by reference, see § 430.3) and as additionally specified in section 2.7.5 of this Appendix, while the remaining place settings, serving pieces, and all flatware are not soiled. The test load is to be loaded in the dishwasher according to section 5.8 of ANSI/AHAM DW-1.
(B) For compact dishwashers, the test unit is to be loaded with four place settings plus six serving pieces as specified in section 2.7 of this Appendix. One of the four place settings, except for the flatware, must be soiled according to sections 5.3 through 5.7 of ANSI/AHAM DW-1 and as additionally specified in section 2.7.5 of this Appendix, while the remaining place settings, serving pieces, and all flatware are not soiled. The test load is to be loaded in the dishwasher according to section 5.8 of ANSI/AHAM DW-1.
2.6.3.2.3 For tests of the sensor light response, as defined in section 1.17 of this Appendix:
(A) For standard dishwashers, the test unit is to be loaded with a total of eight place settings plus six serving pieces as specified in section 2.7 of this Appendix. One of the eight place settings, except for the flatware, must be soiled with half of the soil load specified for a single place setting according to sections 5.3 through 5.7 of ANSI/AHAM DW-1 (incorporated by reference, see § 430.3) and as additionally specified in section 2.7.5 of this Appendix, while the remaining place settings, serving pieces, and all flatware are not soiled. The test load is to be loaded in the dishwasher according to section 5.8 of ANSI/AHAM DW-1.
(B) For compact dishwashers, the test unit is to be loaded with four place settings plus six serving pieces as specified in section 2.7 of this Appendix. One of the four place settings, except for the flatware, must be soiled with half of the soil load specified for a single place setting according to sections 5.3 through 5.7 of ANSI/AHAM DW-1 and as additionally specified in section 2.7.5 of this Appendix, while the remaining place settings, serving pieces, and all flatware are not soiled. The test load is to be loaded in the dishwasher according to section 5.8 of ANSI/AHAM DW-1.
2.7
2.7.1
2.7.2
2.7.3
2.7.4
2.7.4.1
2.7.4.2
2.7.5
2.7.5.1
2.7.5.2
2.7.5.3
2.8
2.9
2.10
2.10.1
2.10.2
3.5
3.8
4.1
4.1.1 Measure the water consumption, V
4.1.2 Repeat the cycle as specified in section 4.1.1 of this Appendix. If:
Then V
Otherwise, repeat the cycle as specified in section 4.1.1 of this Appendix until:
Otherwise, if a maximum total of 10 cycles have been conducted and no cycle is determined to have water consumption that is 10 percent higher than the average water consumption of the other cycles, then the unit shall be deemed not a water-softening dishwasher.
4.2
4.2.1
4.2.2
4.2.3
4.3
4.4
4.4.1 If the dishwasher has an inactive mode, as defined in section 1.10 of this Appendix, measure and record the average inactive mode power of the dishwasher, P
4.4.2 If the dishwasher has an off mode, as defined in section 1.13 of this Appendix, measure and record the average off mode power, P
5.1
5.1.1
5.1.2
5.1.3
5.2
5.2.1
5.2.2
5.3
5.3.1
5.3.2
5.4
5.4.1
5.4.2
5.4.3
5.5
5.5.1
5.5.1.1 Calculate the water energy consumption, W, expressed in kilowatt-hours per cycle and defined as:
5.5.1.2 For water-softening dishwashers, calculate the water softener regeneration water energy consumption, W
5.5.2
5.5.2.1 Calculate the water energy consumption, W, expressed in kilowatt-hours per cycle and defined as:
5.5.2.2 For water-softening dishwashers, calculate the water softener regeneration water energy consumption, W
5.6
5.6.1
5.6.1.1 Calculate the water energy consumption using gas-heated or oil-heated water, W
5.6.1.2 For water-softening dishwashers, calculate the water softener regeneration water energy consumption, W
5.6.2
5.6.2.1 Calculate the water energy consumption using gas-heated or oil-heated water, W
5.6.2.2 For water-softening dishwashers, calculate the water softener regeneration water energy consumption, W
5.7
Then calculate the estimated annual simplified standby power use, S, expressed in kilowatt-hours per year and defined as:
5.8
8. Appendix I to subpart B of part 430 is amended:
a. By revising the Note after the appendix heading;
b. By revising section 1. Definitions;
c. In section 2. Test Conditions, by:
1. Revising sections 2.1, 2.1.1, 2.1.2, 2.1.3, 2.2.1.2, 2.5.2, 2.6, 2.9.1.1, 2.9.1.3, and 2.9.2.1;
2. Deleting section 2.9.2.2;
d. In section 3. Test Methods and Measurements, by:
1. Revising sections 3.1.1, 3.1.1.1, 3.1.1.2, 3.1.2, and 3.1.2.1;
2. Adding new sections 3.1.1.2.1, 3.1.1.2.2, 3.1.2.1.1, and 3.1.2.1.2;
4. Redesignating sections 3.1.3 and 3.1.3.1 as 3.1.4 and 3.1.4.1 and revising newly redesignated section 3.1.4.1;
5. Adding new sections 3.1.3, 3.1.3.1, 3.1.3.2, and 3.1.3.3;
6. Revising sections 3.2.1, 3.2.1.1, 3.2.1.2, 3.2.1.3, and 3.2.1.4;
7. Revising section 3.2.2 and 3.2.2.1 and adding new section 3.2.2.2;
8. Redesignating section 3.2.3 as 3.2.4 and revising newly redesignated section 3.2.4;
9. Adding new section 3.2.3;
10. Revising sections 3.3.7 through 3.3.11; and
11. Deleting sections 3.3.12 and 3.3.13;
e. In section 4. Calculation of Derived Results From Test Measurements, by:
1. Revising sections 4.1.1 and 4.1.1.1;
2. Removing section 4.1.2.2;
3. Redesignating sections 4.1.2.3, 4.1.2.3.1, 4.1.2.3.2, 4.1.2.4, 4.2.1.5, 4.1.2.5.1, 4.1.2.5.2, 4.1.2.6, 4.1.2.6.1, and 4.1.2.6.2 as 4.1.2.2, 4.1.2.2.1, 4.1.2.2.2, 4.1.2.3, 4.1.2.4, 4.1.2.4.1, 4.1.2.4.3, 4.1.2.5, 4.1.2.5.1, and 4.1.2.5.3;
4. Revising newly designated section 4.1.2.2.1, 4.1.2.2.2, 4.1.2.3, 4.1.2.4.1, 4.1.2.4.3, 4.1.2.5.1, and 4.1.2.5.3;
5. Adding new sections 4.1.2.4.2 and 4.1.2.5.2;
6. Revising section 4.1.4;
7. Adding new sections 4.1.4.1 and 4.1.4.2;
8. Revising sections 4.2.1.1 and 4.2.1.2;
9. Revising section 4.2.2.1;
10. Adding new sections 4.2.2.1.1 and 4.2.2.1.2;
11. Revising section 4.2.2.2.2;
12. Removing section 4.2.2.2.3;
13. Revising section 4.2.3;
14. Adding new sections 4.2.3.1 and 4.2.3.2; and
15. Revising section 4.3.
The additions and revisions read as follows:
The procedures and calculations in this Appendix I need not be performed to determine compliance with energy conservation standards for conventional ranges, conventional cooking tops, conventional ovens, and microwave ovens at this time. However, any representation related to standby mode and off mode energy consumption of conventional ranges, conventional cooking tops, and conventional ovens made after (
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
2.1
2.1.1
2.1.2
2.1.3
2.2.1.2
2.5.2
2.6
2.9.1.1
2.9.1.3
2.9.2
2.9.2.1
3.1.1
3.1.1.1
3.1.1.2
3.1.1.2.1 If the conventional oven has an inactive mode, as defined in section 1.11 of this Appendix, measure and record the average inactive mode power of the conventional oven, P
3.1.1.2.2 If the conventional oven has an off mode, as defined in section 1.13 of this Appendix, measure and record the average off mode power of the conventional oven, P
3.1.2
3.1.2.1
3.1.2.1.1 If the conventional cooking top has an inactive mode, as defined in section 1.11 of this Appendix, measure and record the average inactive mode power of the conventional cooking top, P
3.1.2.1.2 If the conventional cooking top has an off mode, as defined in section 1.13 of this Appendix, measure and record the average off mode power of the conventional cooking top, P
3.1.3
3.1.3.1 If the conventional range has an inactive mode, as defined in section 1.11 of this Appendix, measure and record the average inactive mode power of the conventional range, P
3.1.3.2 If the conventional range has an off mode, as defined in section 1.13 of this Appendix, measure and record the average off mode power of the conventional range, P
3.1.4
3.1.4.1
3.2.1
3.2.1.1
3.2.1.2
3.2.1.3
3.2.1.4
3.2.2
3.2.2.1
3.2.2.2
3.2.3
3.2.4
3.3.7 For conventional ovens, record the conventional oven standby mode and off mode test measurements P
3.3.8 For the surface unit under test, record the electric energy consumption, E
3.3.9 Record the heating value, Hn, as determined in section 2.2.2.2 of this Appendix for the natural gas supply.
3.3.10 Record the heating value, Hp, as determined in section 2.2.2.3 of this Appendix for the propane supply.
3.3.11 Record the average standby mode power, P
4.1.1
4.1.1.1
4.1.2.2.1
4.1.2.2.2
4.1.2.3
4.1.2.4.1
4.1.2.4.2
4.1.2.4.3
If the conventional gas oven uses electrical energy, calculate the total annual electrical energy consumption, E
If the conventional gas oven uses electrical energy, also calculate the total integrated annual electrical energy consumption, IE
4.1.2.5.1
4.1.2.5.2
4.1.2.5.3
If the oven also uses electrical energy, calculate the total annual electrical energy consumption, E
is the average annual secondary energy consumption for cooking,
is the average annual secondary self-cleaning energy consumption,
If the oven also uses electrical energy, also calculate the total integrated annual electrical energy consumption, IE
is the average annual secondary energy consumption for cooking,
4.1.4
4.1.4.1
For electric ovens,
For gas ovens:
4.1.4.2
For electric ovens,
For gas ovens:
4.2.1.1
4.2.1.2
4.2.2.1
4.2.2.1.1
4.2.2.1.2
If the conventional cooking top has both inactive mode and off mode annual hours, S
If the conventional cooking top has an inactive mode but no off mode, the inactive mode annual hours, S
If the conventional cooking top has an off mode but no inactive mode, S
4.2.2.2.2
If the conventional cooking top has both inactive mode and off mode annual hours, S
If the conventional cooking top has an inactive mode but no off mode, the inactive mode annual hours, S
If the conventional cooking top has an off mode but no inactive mode, S
4.2.3
4.2.3.1
For an electric cooking top, the energy factor is the same as the cooking efficiency as determined according to section 4.2.1.3 of this Appendix.
For gas cooking tops,
4.2.3.2
For electric cooking tops,
For gas cooking tops,
4.3
S
If the conventional oven component of the conventional range has fan-only mode, S
If the conventional range has both inactive mode and off mode, S
If the conventional range has an inactive mode but no off mode, the inactive mode annual hours, S
If the conventional range has an off mode but no inactive mode, S
The annual energy consumption for other combinations of ovens and cooktops will also be treated as the sum of the annual energy consumption of each of its components. The energy factor of a combined component is the sum of the annual useful cooking energy output of each component divided by the sum of the total annual energy consumption of each component. The integrated energy factor of other combinations of ovens and cooktops is the sum of the annual useful cooking energy output of each component divided by the sum of the total integrated annual energy consumption of each component.
9. Appendix X to subpart B of part 430 is revised to read as follows:
The procedures and calculations that refer to standby mode and off mode energy consumption (
This Appendix covers the test requirements used to measure the energy performance of dehumidifiers.
a. ANSI/AHAM DH-1 means the test standard published by the American National Standards Institute and the Association of Home Appliance Manufacturers, titled “Dehumidifiers,” ANSI/AHAM DH-1-2008, (incorporated by reference; see § 430.3).
b.
c.
d.
e.
f.
g.
h.
(1) Has cycled off its main function by humidistat or humidity sensor;
(2) Does not have its fan or blower operating; and
(3) Will reactivate the main function according to the humidistat or humidity sensor signal.
i.
j.
(1) To facilitate the activation of other modes (including activation or deactivation of active mode) by remote switch (including remote control), internal sensor, or timer;
(2) Continuous functions, including information or status displays (including clocks) or sensor-based functions. A timer is a continuous clock function (which may or may not be associated with a display) that provides regular scheduled tasks (
3.1
(i) A fractional number at or above the midpoint between two consecutive decimal places shall be rounded up to the higher of the two decimal places; or
(ii) A fractional number below the midpoint between two consecutive decimal places shall be rounded down to the lower of the two decimal places.
3.2
3.2.1
3.2.2
3.2.2.1
3.2.2.2
3.2.3
3.2.4
4.1
4.2
4.2.1 If the dehumidifier has an inactive mode, as defined in section 2(f) of this Appendix, measure and record the average inactive mode power of the dehumidifier, P
4.2.2 If the dehumidifier has an off-cycle mode, as defined in section 2(h) of this Appendix, measure and record the average off-cycle mode power of the dehumidifier, P
4.2.3 If the dehumidifier has a bucket full/removed mode, as defined in section 2(c) of this Appendix, measure and record the average bucket full/removed mode power of the dehumidifier, P
4.2.4 If the dehumidifier has an off mode, as defined in section 2(g) of this Appendix, measure and record the average off mode power, P
5.1
If the dehumidifier has an inactive mode and off-cycle mode but no off mode, the inactive mode annual hours, S
S
If the dehumidifier has bucket full/removed mode, S
If the dehumidifier does not have bucket full/removed mode, S
If the dehumidifier has an inactive mode and off mode but no off-cycle mode, the inactive mode annual hours, S
If the dehumidifier has an inactive mode but no off-cycle mode or off mode, the
If the dehumidifier has an off-cycle mode and off mode but no inactive mode, the off-cycle mode annual hours, S
If the dehumidifier has an off-cycle mode but no off mode or inactive mode, the off-cycle mode annual hours, S
If the dehumidifier has an off mode but no inactive mode or off-cycle mode, the off mode annual hours, S
If the dehumidifier has an inactive mode, off-cycle mode, and off mode, the inactive mode annual hours, S
5.2
Bureau of Consumer Financial Protection.
Proposed rule; request for public comment.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) amends the Truth in Lending Act by expanding the types of mortgage loans that are subject to the protections of the Home Ownership and Equity Protection Act of 1994 (HOEPA), by revising and expanding the triggers for coverage under HOEPA, and by imposing additional restrictions on HOEPA mortgage loans, including a pre-loan counseling requirement. The Dodd-Frank Act also amends the Truth in Lending Act and the Real Estate Settlement Procedures Act by imposing certain other requirements related to homeownership counseling. The Bureau of Consumer Financial Protection (Bureau) is proposing to amend Regulation Z (Truth in Lending) and Regulation X (Real Estate Settlement Procedures Act) to implement the Dodd-Frank Act's amendments to the Truth in Lending Act and the Real Estate Settlement Procedures Act.
Comments must be received on or before September 7, 2012, except that comments on the Paperwork Reduction Act analysis in part VIII of this
You may submit comments, identified by Docket No. CFPB-2012-0029 or RIN 3170-AA12, by any of the following methods:
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All submissions must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. In general, all comments received will be posted without change to
All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Comments will not be edited to remove any identifying or contact information.
Paul Ceja, Senior Counsel & Special Advisor; Stephen Shin and Pavneet Singh, Senior Counsels; and Courtney Jean, Counsel, Office of Regulations, at (202) 435-7700.
The Home Ownership and Equity Protection Act (HOEPA) was enacted in 1994 as an amendment to the Truth in Lending Act (TILA) to address abusive practices in refinancing and home-equity mortgage loans with high interest rates or high fees. Loans that meet HOEPA's high-cost triggers are subject to special disclosure requirements and restrictions on loan terms, and borrowers in high-cost mortgages have enhanced remedies for violations of the law.
In response to the recent mortgage crisis, Congress through the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) expanded HOEPA to apply to more types of mortgage transactions, including to purchase money mortgage loans and home-equity lines of credit. Congress also amended HOEPA's existing high-cost triggers, added a prepayment penalty trigger, and expanded the protections associated with high-cost mortgages. The Bureau is now proposing to amend Regulation Z to implement the Dodd-Frank Act amendments to HOEPA.
The proposal also would implement other homeownership counseling-related requirements that Congress adopted in the Dodd-Frank Act, that are not amendments to HOEPA. The proposal would generally require lenders to distribute a list of homeownership counselors or counseling organizations to consumers within a few days after applying for any mortgage loan. The proposal also would implement a requirement that first-time borrowers receive homeownership counseling before taking out a negatively amortizing loan.
The proposed rule would implement the Dodd-Frank Act's amendments that expanded the universe of loans potentially covered by HOEPA. Under the proposed rule, most types of mortgage loans secured by a consumer's principal dwelling, including purchase money mortgage loans, refinances, closed-end home-equity loans, and open-end credit plans (
Under the Dodd-Frank Act, HOEPA protections would be triggered where:
• A loan's annual percentage rate (APR) exceeds the average prime offer rate by 6.5 percentage points for most first-lien mortgages and 8.5 percentage points for subordinate lien mortgages;
• A loan's points and fees exceed 5 percent of the total transaction amount, or a higher threshold for loans below $20,000; or
• The creditor may charge a prepayment penalty more than 36 months after loan consummation or account opening, or penalties that exceed more than 2 percent of the amount prepaid.
The proposed rule would implement the Dodd-Frank Act's amendments to HOEPA's triggers for determining coverage and would provide guidance on how to apply the triggers. For instance, for purposes of the APR trigger, the interest rate used to determine HOEPA coverage for variable-rate loans or plans would generally be based on the maximum margin permitted at any time during the loan or plan, added to the index rate in effect at consummation or account opening. The average prime offer rate for open-end credit plans would be determined based on the average prime offer rate for the most closely comparable closed-end
The Bureau is also seeking comment on whether to adopt certain adjustments or accommodations in its HOEPA implementing regulations if it adopts a broader definition of “finance charge” under Regulation Z. That change, which the Bureau is proposing in connection with its proposal to integrate mortgage disclosures,
The proposed rule also would implement new Dodd-Frank Act restrictions and requirements concerning loan terms and origination practices for high-cost mortgages. For example:
• Balloon payments would largely be banned, and creditors would be prohibited from charging prepayment penalties and financing points and fees.
• Late fees would be restricted to four percent of the payment that is past due, fees for providing payoff statements would be restricted, and fees for loan modification or loan deferral would be banned.
• Creditors originating open-end credit plans would be required to assess consumers' ability to repay the loans. (Creditors originating high-cost, closed-end mortgage loans already are required to assess consumers' ability to repay.)
• Creditors and mortgage brokers would be prohibited from recommending or encouraging a consumer to default on a loan or debt to be refinanced by a high-cost mortgage.
• Before making a high-cost mortgage, creditors would be required to obtain confirmation from a federally certified or approved homeownership counselor that the consumer has received counseling on the advisability of the loan.
In addition to the proposed changes discussed above, the Bureau's proposal would implement two Dodd-Frank Act homeownership counseling-related provisions that are not amendments to HOEPA.
• The proposed rule would amend Regulation X
• The proposed rule would amend Regulation Z to implement a requirement under TILA that creditors obtain confirmation that a first-time borrower has received homeownership counseling from a federally certified or approved homeownership counselor or counseling organization before making a negative amortization loan to the borrower. (A negative amortization loan is one in which the payment schedule can cause the loan's principal balance to increase over time.)
The Bureau's proposal seeks comment on when a final rule should be effective. Because the final rule will provide important benefits to consumers, the Bureau seeks to make it effective as soon as possible. However, the Bureau understands that the final rule will require lenders and brokers to make systems changes and to retrain their staff. In addition, industry will at approximately the same time be implementing a number of other changes relating to other Dodd-Frank Act provisions, some of which will take effect within one year after issuance of final implementing rules. Therefore, the Bureau is seeking comment on how much time industry needs to make these changes.
HOEPA was enacted as part of the Riegle Community Development and Regulatory Improvement Act of 1994, Public Law 103-325, 108 Stat. 2160, in response to evidence concerning abusive practices in mortgage loan refinancing and home-equity lending.
For high-cost loans meeting either of those thresholds, HOEPA required lenders to provide special pre-closing disclosures, restricted prepayment penalties and certain other loan terms, and regulated various lender practices, such as extending credit without regard to a consumer's ability to repay the loan. HOEPA also provided a mechanism for consumers to rescind covered loans that included certain prohibited terms and to obtain higher damages than are allowed for other types of TILA violations. Finally, HOEPA amended TILA section 131, 15 U.S.C. 1641, to provide for increased liability to purchasers of HOEPA loans. Purchasers and assignees of loans not covered by HOEPA generally are liable only for legal violations apparent on the face of the disclosure statements, whereas purchasers of HOEPA loans generally are subject to all claims and defenses against the original creditor with respect to the mortgage.
The Board of Governors of the Federal Reserve System (Board) first issued regulations implementing HOEPA in 1995. 60 FR 15463 (March 24, 1995). The Board published additional significant changes in 2001 that lowered HOEPA's APR trigger for first-lien mortgage loans, expanded the definition of points and fees to include the cost of optional credit insurance and debt cancellation premiums, and enhanced the restrictions associated with HOEPA loans.
With the enactment of the Dodd-Frank Act, general rulemaking authority for TILA, including HOEPA, transferred from the Board to the Bureau on July 21, 2011. Pursuant to the Dodd-Frank Act and TILA, as amended, the Bureau published for public comment an interim final rule establishing a new Regulation Z, 12 CFR part 1026, implementing TILA (except with respect to persons excluded from the Bureau's rulemaking authority by section 1029 of the Dodd-Frank Act). 76 FR 79768 (Dec. 22, 2011). This rule did not impose any new substantive obligations but did make technical and conforming changes to reflect the transfer of authority and
Congress enacted RESPA, 12 U.S.C. 2601
Historically, Regulation X of the Department of Housing and Urban Development (HUD), 24 CFR part 3500, has implemented RESPA. The Dodd-Frank Act transferred rulemaking authority for RESPA to the Bureau, effective July 21, 2011. See sections 1061 and 1098 of the Dodd-Frank Act. Pursuant to the Dodd-Frank Act and RESPA, as amended, the Bureau published for public comment an interim final rule establishing a new Regulation X, 12 CFR part 1024, implementing RESPA. 76 FR 78978 (Dec. 20, 2011). This rule did not impose any new substantive obligations but did make certain technical, conforming, and stylistic changes to reflect the transfer of authority and certain other changes made by the Dodd-Frank Act. The Bureau's Regulation X took effect on December 30, 2011.
Congress enacted the Dodd-Frank Act after a cycle of unprecedented expansion and contraction in the mortgage market sparked the most severe U.S. recession since the Great Depression.
As part of these changes, sections 1431 through 1433 of the Dodd-Frank Act significantly amended HOEPA to expand the types of loans potentially subject to HOEPA coverage, to revise the triggers for HOEPA coverage, and to strengthen and expand the restrictions that HOEPA imposes on those mortgages.
Historically, originations of high-cost mortgages have accounted for an extremely small percentage of the market. This may be due to a variety of factors, including the fact that HOEPA's assignee liability provisions make the loans relatively unattractive to secondary market investors, as well as general compliance burden and stigma. Data collected under the Home Mortgage Disclosure Act (HMDA) further indicate that the percentage share of HOEPA loans has generally been declining since 2004, the first year that HMDA reporters were required to identify HOEPA loans. Between 2004 and 2010, HOEPA loans typically comprised about 0.2 percent of originations of home-secured refinance or home-improvement loans made by lenders that report in HMDA. This percentage peaked at 0.44 percent in 2005 when, of about 8.2 million originations potentially covered by HOEPA, approximately 36,000 HOEPA loans were made. The percentage fell to 0.06 percent by 2010 when, of 5.3 million originations potentially covered by HOEPA, about 3,400 HOEPA loans were made. Similarly, the number of HMDA-reporting lenders that originate HOEPA loans is relatively small. From 2004 through 2009, about 1,000 to 2,300 (roughly 12 to 24 percent) of such lenders extended HOEPA loans. The vast majority (
In addition to this proposal, the Bureau currently is engaged in six other rulemakings relating to mortgage credit to implement requirements of the Dodd-Frank Act:
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•
•
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The Bureau regards the foregoing rulemakings as components of a larger undertaking; many of them intersect with one or more of the others. Accordingly, the Bureau is coordinating carefully the development of the proposals and final rules identified above. Each rulemaking will adopt new regulatory provisions to implement the various Dodd-Frank Act mandates described above. In addition, each of them may include other provisions the Bureau considers necessary or appropriate to ensure that the overall undertaking is accomplished efficiently and that it ultimately yields a comprehensive regulatory scheme for mortgage credit that achieves the statutory purposes set forth by Congress, while avoiding unnecessary burdens on industry. Thus, many of the rulemakings listed above involve issues that extend across two or more rulemakings. In this context, each rulemaking may raise concerns that might appear unaddressed if that rulemaking were viewed in isolation. For efficiency's sake, however, the Bureau is publishing and soliciting comment on proposed answers to certain issues raised by two or more of its mortgage rulemakings in whichever rulemaking is most appropriate, in the Bureau's judgment, for addressing each specific issue. Accordingly, the Bureau urges the public to review this and the other mortgage proposals identified above, including those previously published by the Board, together. Such a review will ensure a more complete understanding of the Bureau's overall approach and will foster more comprehensive and informed public comment on the Bureau's several proposals, including provisions that may have some relation to more than one rulemaking but are being proposed for comment in only one of them.
For example, as discussed in detail in the section-by-section analysis under proposed § 1026.32(a) and (b) below, the Bureau's 2012 TILA-RESPA Proposal is proposing a simpler, more inclusive definition of the finance charge for closed-end, dwelling-secured credit transactions, similar to the definition that the Board proposed in its August 2009 proposed rulemaking concerning closed-end credit.
The Bureau recognizes, as did the Board, that the proposed more inclusive finance charge could affect the coverage of higher-priced mortgage loan and HOEPA protections. The Bureau is also aware that, consequently, a more inclusive finance charge has implications for the HOEPA, Appraisals, Ability to Repay, and Escrows rulemakings identified above. Those impacts are analyzed in the 2012 TILA-RESPA Proposal, but the Bureau believes that it is also helpful to analyze potential impacts and modifications to particular regulatory triggers on a rule-by-rule basis. Accordingly, this proposal seeks comment on whether and how to account for the implications of the more inclusive finance charge on the scope of HOEPA coverage.
As noted above, the Bureau inherited rulemaking authority for Regulation Z from the Board in July 2011, including the authority to finalize several mortgage-related rulemakings that the Board proposed between 2009 and 2011 in part to respond to the mortgage crisis and to begin implementing new Dodd-Frank Act requirements. Several of the Board's pending mortgage-related proposals relate directly to provisions addressed in this proposal. As discussed in detail in the section-by-section analysis, below, this proposal re-publishes or otherwise incorporates certain portions of the Board's proposals.
The Board's 2010 Mortgage Proposal also revisited the definition of prepayment penalty. The Board proposed to amend commentary to Regulation Z to clarify that, on a closed-end transaction, assessing interest for a period after the loan balance has been paid in full is a prepayment penalty, even if the charge results from the normal interest accrual amortization method used on the transaction. The amendment was intended to clarify a question that had been raised in connection with FHA loans and other lending programs, which, for purposes of allocating a consumer's payment to accrued interest and principal, treated all loan payments as being made on the scheduled due date even if payment was made prior to its scheduled due date. The amendment clarified that, in the case of a prepayment
As discussed in detail throughout the section-by-section analysis below, the current proposal of the Bureau to implement the Dodd-Frank HOEPA amendments draws on the Board's 2009 Closed-End Proposal, 2009 Open-End Proposal, 2010 Mortgage Proposal, 2011 Escrow Proposal, and 2011 ATR Proposal.
The Bureau is issuing this proposed rule pursuant to its authority under TILA, RESPA, and the Dodd-Frank Act. On July 21, 2011, section 1061 of the Dodd-Frank Act transferred to the Bureau all of the HUD Secretary's consumer protection functions relating to RESPA.
Section 19(a) of RESPA, 12 U.S.C. 2617(a), authorizes the Bureau to prescribe such rules and regulations and to make such interpretations and grant such reasonable exemptions for classes of transactions as may be necessary to achieve the purposes of RESPA. One purpose of RESPA is to effect certain changes in the settlement process for residential real estate that will result in more effective advance disclosure to home buyers and sellers of settlement costs. RESPA section 2(b), 12 U.S.C. 2601(b). In addition, in enacting RESPA, Congress found that consumers are entitled to be “provided with greater and more timely information on the nature and costs of the settlement process and [to be] protected from unnecessarily high settlement charges caused by certain abusive practices * * * .” RESPA section 2(a), 12 U.S.C. 2601(a). In the past, section 19(a) has served as a broad source of authority to prescribe disclosures and substantive requirements to carry out the purposes of RESPA.
As amended by the Dodd-Frank Act, TILA section 105(a), 15 U.S.C. 1604(a), directs the Bureau to prescribe regulations to carry out the purposes of the Act. Except with respect to the substantive restrictions on high-cost mortgages provided in TILA section 129, TILA section 105(a) authorizes the Bureau to prescribe regulations that may contain additional requirements, classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for all or any class of transactions that the Bureau determines are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. A purpose of TILA is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” TILA section 102(a); 15 U.S.C. 1601(a).
Historically, TILA section 105(a) has served as a broad source of authority for rules that promote the informed use of credit through required disclosures and substantive regulation of certain practices. However, Dodd-Frank Act section 1100A clarified the Bureau's section 105(a) authority by amending that section to provide express authority to prescribe regulations that contain “additional requirements” that the Bureau finds are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance. This amendment clarified the authority to exercise TILA section 105(a) to prescribe requirements beyond those specifically listed in the statute that meet the standards outlined in section 105(a). The Dodd-Frank Act also clarified the Bureau's rulemaking authority over high-cost mortgages pursuant to section 105(a). As amended by the Dodd-Frank Act, TILA section 105(a) authority to make adjustments and exceptions to the requirements of TILA applies to all transactions subject to TILA, except with respect to the provisions of the TILA section 129 that apply to high-cost mortgages, as noted above. For the reasons discussed in this notice, the Bureau is proposing regulations to carry out TILA's purposes and is proposing such additional requirements, adjustments, and exceptions as, in the Bureau's judgment, are necessary and proper to carry out the purposes of TILA, prevent circumvention or evasion thereof, or to facilitate compliance.
Pursuant to TILA section 103(bb)(2), 15 U.S.C. 1602(bb)(2), the Bureau may prescribe regulations to adjust the statutory percentage points for the APR threshold to determine whether a transaction is covered as a high-cost mortgage, if the Bureau determines that such an increase or decrease is consistent with the statutory consumer protections for high-cost mortgages and is warranted by the need for credit. Under TILA section 103(bb)(4), the Bureau may adjust the definition of points and fees for purposes of that threshold to include such charges that the Bureau determines to be appropriate.
With respect to the high-cost mortgage provisions of TILA section 129, TILA section 129(p), 15 U.S.C. 1639(p), as amended by the Dodd-Frank Act, grants the Bureau authority to create exemptions to the restrictions on high-cost mortgages and expand the protections that apply to high-cost mortgages. Under TILA section 129(p)(1), the Bureau may exempt specific mortgage products or categories from any or all of the prohibitions specified in subsections (c) through (i) of TILA section 129,
TILA section 129(p)(2) grants the Bureau the authority to prohibit acts or practices in connection with:
• Mortgage loans that the Bureau finds to be unfair, deceptive, or designed to evade the provisions of HOEPA; and
• Refinancing of mortgage loans the Bureau finds to be associated with abusive lending practices or that are otherwise not in the interest of the borrower.
The authority granted to the Bureau under TILA section 129(p)(2) is broad. The provision is not limited to acts or practices by creditors. TILA section 129(p)(2) authorizes protections against unfair or deceptive practices “in connection with mortgage loans,” and it authorizes protections against abusive practices “in connection with * * * refinancing of mortgage loans.” Thus, the Bureau's authority is not limited to regulating specific contractual terms of mortgage loan agreements; it extends to regulating loan-related practices generally, within the standards set forth in the statute. The Bureau notes that TILA does not set forth a standard for what is unfair or deceptive, but those terms have settled meanings under other Federal and State consumer protection laws. The Conference Report for HOEPA indicates that, in determining whether a practice in connection with mortgage loans is unfair or deceptive, the Bureau should look to the standards employed for interpreting State unfair and deceptive trade practices statutes and the Federal Trade Commission Act, section 5(a), 15 U.S.C. 45(a).
In addition, section 1433(e) of the Dodd-Frank Act created a new TILA section 129(u)(3), which authorizes the Bureau to implement pre-loan counseling requirements mandated by the Dodd-Frank Act for high-cost mortgages. Specifically, under TILA section 129(u)(3), the Bureau may prescribe regulations as the Bureau determines to be appropriate to implement TILA section 129(u)(1), which provides the Dodd-Frank Act's pre-loan counseling requirement for high-cost mortgages.
Section 1405(b) of the Dodd-Frank Act provides that, “[n]otwithstanding any other provision of [title XIV of the Dodd-Frank Act], in order to improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, the [Bureau] may, by rule, exempt from or modify disclosure requirements, in whole or in part, for any class of residential mortgage loans if the [Bureau] determines that such exemption or modification is in the interest of consumers and in the public interest.” 15 U.S.C. 1601 note. Section 1401 of the Dodd-Frank Act, which amended TILA section 103(cc), 15 U.S.C. 1602(cc), generally defines residential mortgage loan as any consumer credit transaction that is secured by a mortgage on a dwelling or on residential real property that includes a dwelling other than an open-end credit plan or an extension of credit secured by a consumer's interest in a timeshare plan. Notably, the authority granted by section 1405(b) applies to “disclosure requirements” generally, and is not limited to a specific statute or statutes. Accordingly, Dodd-Frank Act section 1405(b) is a broad source of authority to modify the disclosure requirements of TILA and RESPA.
Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules “as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.” 12 U.S.C. 5512(b)(1). Section 1022(b)(2) of the Dodd-Frank Act prescribes certain standards for rulemaking that the Bureau must follow in exercising its authority under section 1022(b)(1). 12 U.S.C. 5512(b)(2). As discussed above, TILA and RESPA are Federal consumer financial laws. Accordingly, the Bureau proposes to exercise its authority under Dodd-Frank Act section 1022(b) to prescribe rules under TILA and RESPA that carry out the purposes and prevent evasion of those laws. See part VI for a discussion of the Bureau's standards for rulemaking under Dodd-Frank Act section 1022(b)(2).
For the reasons discussed below in the section-by-section analysis, the Bureau is proposing regulations pursuant to its authority under TILA, RESPA, and title X of the Dodd-Frank Act.
The Bureau expects to issue a final rule implementing the Dodd-Frank Act amendments addressed in the Bureau's proposal by January 21, 2013. As discussed above, the Bureau is seeking comment on when a final rule should be effective.
Under section 1400(c)(1) of the Dodd-Frank Act, regulations that are
The Bureau recognizes the importance of the changes to be made by the Bureau's final rule for consumer protection, and the need to put these changes into place for consumers. For example, including within HOEPA's definition of “high-cost mortgage” high cost purchase money mortgages and HELOCs, will ensure that borrowers who obtain such high-cost mortgages will have the full benefit of the protections and enhanced remedies provided by HOEPA. In addition, for consumers applying for a high-cost mortgage, having the benefit of the advice of a homeownership counselor to assist them in understanding the terms of the mortgage, and how such a mortgage will fit in with their existing budget, will help consumers in fully assessing the possible consequences of such a mortgage. The Bureau believes consumers should have the benefit of the Dodd-Frank Act additional protections and requirements as soon as possible.
The Bureau also recognizes, however, that lenders, brokers, and (where applicable) servicers will need time to make systems changes and to retrain their staff, in order to address the Dodd-Frank Act changes implemented through the Bureau's final rule. In addition, the Bureau recognizes that industry will need to make changes to address a number of other requirements relating to other Dodd-Frank Act provisions, some of which, unlike the Bureau's HOEPA rulemaking, are required by the Dodd-Frank Act to take effect within one year after issuance of final implementing rules. The Bureau believes that ensuring that industry has sufficient time to make the necessary changes will ultimately benefit
The Bureau therefore seeks public comment on the time period that should be provided to implement the changes that will be required by the final rule, taking into account the factors discussed above. As discussed in the section-by-section analysis to proposed § 1026.32(a)(1)(i) below, the Bureau also seeks comment on potential implementation periods relating to certain changes being proposed in the 2012 TILA-RESPA Proposal to the definition of finance charge under Regulation Z, and related mitigation measures that the Bureau is proposing in this rule to address the impacts on HOEPA coverage.
Section 1433(f) of the Dodd-Frank Act added new section 129(v) to TILA, 15 U.S.C. 1639(v), which allows a creditor or assignee of a high-cost mortgage in certain circumstances to correct a failure to comply, when acting in good faith, with HOEPA requirements. At this time the Bureau is not proposing to issue regulatory guidance concerning this provision. The Bureau solicits comment on the extent to which creditors or assignees are likely to invoke this provision, whether regulatory guidance would be useful, and if so what issues would be most important to address.
The Bureau is proposing a new § 1024.20 to implement an amendment made by section 1450 of the Dodd-Frank Act to section 5 of RESPA, 12 U.S.C. 2604. The amendment requires lenders to provide a list of homeownership counselors to potential borrowers of federally related mortgage loans. Specifically, the Dodd-Frank Act amended RESPA section 5(c) to require lenders to provide potential borrowers with a “reasonably complete or updated list of homeownership counselors who are certified pursuant to section 106(e) of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x(e)) and located in the area of the lender.”
The list of homeownership counselors is to be included with a “home buying information booklet” that the Bureau is directed to prepare “to help consumers applying for federally related mortgage loans to understand the nature and costs of real estate settlement services.”
Under RESPA and its implementing regulations, a federally related mortgage loan includes purchase money mortgage loans, subordinate mortgages, refinancings, closed-end home-equity mortgage loans, home-equity lines of credit, and reverse mortgages.
RESPA sections 5(a) and (b), as amended, indicate that Congress intended the booklet and list of counselors to be provided to all applicants for federally related mortgage loans. However, section 5(d) of RESPA, in language that was not amended by the Dodd-Frank Act, requires lenders to provide the home buying information booklet “to each person from whom [the lender] receives or for whom it prepares a written application to borrow money to finance the purchase of residential real estate.” The information booklet mandated by section 5 of RESPA before its amendment by the Dodd-Frank Act is only required by current Regulation X to be provided to applicants for purchase money mortgages.
Section 19(a) of RESPA provides the Bureau with the authority to “prescribe such rules and regulations, to make such interpretations, and to grant such reasonable exemptions for classes of transactions, as may be necessary to achieve the purposes of the [RESPA].” Based on its reading of section 5 as a whole, and its understanding of the purposes of that section, the Bureau is proposing that the list of homeownership counselors be provided to all applicants for federally related mortgage loans (except for applicants for Home Equity Conversion Mortgages (HECMs), as discussed further below).
Section 5(a) as amended: (1) Specifically references helping consumers applying for federally related mortgage loans understand the nature and costs of real estate settlement services; and (2) directs the Bureau to distribute the booklet and the lists of housing counselors to lenders that make federally related mortgage loans. Moreover, the prescribed content of the booklet is not limited to information on purchase money mortgage loans. Additionally, the Bureau believes that a trained counselor can be useful to any consumer considering any type of mortgage loan. Mortgage transactions beyond purchase money transactions, such as refinancings and open-end home-secured credit transactions, can entail significant risks and costs for consumers—risks and costs that a trained homeownership counselor can assist consumers in fully understanding. Therefore, the Bureau's proposal would require the homeownership counselor list to be provided to applicants for refinancings and home-equity lines of credit, in addition to purchase money mortgages. The Bureau seeks comment from the public on the costs and benefits of the provision of the list of homeownership counselors to consumers who are applicants for refinances and home-equity lines of credit. The Bureau also solicits comment on the potential effect of the Bureau's proposal on access to homeownership counseling generally by consumers, and the effect of increased consumer demand for counseling on existing counseling resources. In particular, the Bureau solicits comment on the effect on counseling resources of providing the list beyond applicants for purchase money mortgages.
Proposed § 1024.20(a) requires a lender to provide to an applicant for a federally related mortgage loan a clear and conspicuous written list of five homeownership counselors or counseling organizations. The list provided by the lender pursuant to this requirement must include only homeownership counselors or counseling organizations from either the most current list of homeownership counselors or counseling organizations made available by the Bureau for use by lenders in complying with § 1024.20, or the most current list maintained by HUD of homeownership counselors or counseling organizations certified by HUD, or otherwise approved by HUD.
Proposed § 1024.20(a) provides that the required list include five homeownership counselors or counseling organizations located in the zip code of the loan applicant's current address, or, if there are not the requisite five counselors or counseling organizations in that zip code, then counselors or organizations within the zip code or zip codes closest to the loan applicant's current address. The Bureau invites comment on this requirement and whether there are alternative methods of listing homeownership counselors or counseling organizations available to consumers that would serve the purposes of the statutory requirement and RESPA, in general.
To facilitate compliance with the proposed list requirement, the Bureau is expecting to develop a Web site portal that would allow lenders to type in the loan applicant's zip code to generate the requisite list, which could then be printed for distribution to the loan applicant. The Bureau believes that such an approach: (1) Could significantly mitigate any paperwork burden associated with requiring that the list be distributed to applicants for federally related mortgage loans; and (2) is consistent with the Dodd-Frank Act's amendment to section 5(a) of RESPA requiring the Bureau to distribute to lenders “lists, organized by location, of homeownership counselors certified under section 106(e) of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x(e)) for use in complying with the requirement under [section 5(c)].” The Bureau solicits comment on whether such a portal would be useful and whether there are other mechanisms through which the Bureau can help facilitate compliance and provide lists to lenders and consumers.
The Bureau also solicits comment on whether “five” is the appropriate number of counselors or organizations to be included on the list. The Bureau is aware that several State laws that impose requirements on creditors to provide consumers lists of housing counselors specify a list of five.
Proposed § 1024.20(a) requires that the list include: (1) each counselor's or organization's name, business address, telephone number and, if available from the Bureau or HUD, other contact information; and (2) contact information for the Bureau and HUD.
Proposed § 1024.20(a) requires the lender to provide the list no later than three business days after the lender, mortgage broker or dealer receives a loan application (or information sufficient to complete an application), but allows a mortgage broker or dealer to provide the list to those applicants from whom it receives or for whom it prepares applications. Where a mortgage broker or dealer provides the list, the lender is not required to provide an additional list but remains responsible for ensuring that the list has been provided to the loan applicant and satisfies the requirements of proposed § 1024.20. Proposed § 1024.20(a) sets out the requirements for providing the list to the loan applicant,
Proposed § 1024.20(c) would not require a lender to provide an applicant for a HECM, as that type of reverse mortgage is defined in 12 U.S.C. 1715z-20(b)(3), with the list required under proposed § 1024.20 if the lender is otherwise required by HUD to provide a list, and does provide a list, of HECM counselors or counseling agencies to the loan applicant. As discussed further in the section-by-section analysis below on the Bureau's proposed pre-loan counseling requirement for high-cost mortgages, Federal law currently requires homeowners to receive counseling before obtaining a HECM reverse mortgage insured by the Federal Housing Administration (FHA),
In its 2012 TILA-RESPA Proposal, the Bureau proposes to adopt a new definition of “application” in 12 CFR 1026.2(a)(3). The 2012 TILA-RESPA Proposal would create a new Loan Estimate to replace the RESPA Good-Faith Estimate (GFE) and the initial Truth in Lending Act disclosure. Like those disclosures and the list of homeownership counselors or counseling organizations, the Loan Estimate would be provided three business days after the lender's receipt of an application. However, to encourage lenders to provide the loan term and cost information in the Loan Estimate earlier in the loan process, the 2012 TILA-RESPA Proposal would propose to adopt a definition of application that differs from the definition of application in § 1024.2(b) of Regulation X by removing “any other information deemed necessary by the loan originator” from the § 1024.2(b) list of application elements. Thus, a lender would no longer be able to delay providing the statutorily required estimates by waiting to collect “other information.” Because consumers could benefit from receiving the list of homeownership counselors or counseling organizations at the same time as the Loan Estimate, the Bureau requests comment on whether to tie provision of the list to the definition of application in proposed § 1026.2(a)(3) instead of the definition in § 1024.2(b).
Section 1026.1(d)(5) describes the organization of Subpart E of Regulation Z, which contains special rules for mortgage transactions. The Bureau proposes to revise § 1026.1(d)(5) to reflect the proposed amendments to §§ 1026.32 and 1026.34, which are discussed in detail below. Specifically, the Bureau proposes to revise § 1026.1(d)(5) to include the term “open-end credit plan” and remove the term “closed-end” where appropriate. In addition, the Bureau proposes to include a reference to the new prepayment penalties trigger for high-cost mortgages added by the Dodd-Frank Act.
Section 1026.31(c) provides additional disclosure requirements for high-cost mortgages. As discussed in detail below, the Dodd-Frank Act expanded the types of loans potentially subject to HOEPA coverage. Therefore, the Bureau proposes to revise § 1026.31(c) and related commentary for clarity and consistency. Specifically, the Bureau proposes to include the term “account opening” in addition to “consummation” to reflect the fact that the Dodd-Frank Act expanded the requirements for high-cost mortgages to open-end credit plans.
The Bureau proposes to revise § 1026.32(a)(1) to implement the definition of “high-cost mortgage” under TILA section 103(bb)(1), as amended by the Dodd-Frank Act. As discussed below, TILA section 103(bb)(1) generally provides that the term “high-cost mortgage” means a consumer credit transaction that is secured by the consumer's principal dwelling, other than a reverse mortgage transaction, if any of the prescribed thresholds are met.
The Dodd-Frank Act amended existing TILA section 103(aa)(1) by removing the exclusion of a residential mortgage transaction and an open-end credit plan from HOEPA coverage. Under TILA section 103(bb)(1)(A), reverse mortgage transactions remain excluded from the definition of a high-cost mortgage. Previously, the statutory protections for HOEPA loans were generally limited to closed-end refinancings and home-equity mortgage loans. The proposal, among other things, extends the statutory protections for high-cost mortgages to residential mortgage transactions, such as purchase money mortgage loans, and to open-end credit plans secured by the consumer's principal dwelling,
Accordingly, proposed § 1026.32(a)(1) defines “high-cost mortgage” to mean any consumer credit transaction, other than a reverse mortgage transaction as defined in § 1026.33(a), that is secured by the consumer's principal dwelling and in which any one of the prescribed thresholds is met. Proposed comment 32(a)(1)-1 clarifies that a high-cost mortgage
Prior to enactment of the Dodd-Frank Act, HOEPA coverage was triggered when a loan's annual percentage rate (APR) or its points and fees exceeded certain thresholds as prescribed by current TILA section 103(aa), which is implemented by current § 1026.32(a)(1). The Dodd-Frank Act adjusted the two existing thresholds and added a third threshold based on the inclusion of certain prepayment penalties. Under TILA section 103(bb)(1)(A), the revised thresholds generally provide that a consumer credit transaction is a high-cost mortgage if:
• The annual percentage rate at consummation of the transaction exceeds the average prime offer rate (APOR) for a comparable transaction by (1) more than 6.5 percentage points for transactions secured by a first mortgage on the consumer's principal dwelling or 8.5 percentage points, if the dwelling is personal property and the total transaction amount is less than $50,000; or (2) 8.5 percentage points for transactions secured by a subordinate mortgage on the consumer's principal dwelling;
• The total points and fees payable in connection with the transaction, other than bona fide third party charges not retained by the mortgage originator, creditor, or an affiliate of either, exceed: (1) In the case of a transaction for $20,000 or more, 5 percent of the total transaction amount; or (2) in the case of a loan for less than $20,000, the lesser of 8 percent of the total transaction amount or $1,000 (adjusted for inflation); or
• The transaction provides for prepayment fees and penalties that (1) may be imposed more than 36 months after consummation or account opening or (2) exceed, in the aggregate, more than 2 percent of the amount prepaid.
The Bureau proposes to revise the existing APR and points and fees thresholds in proposed § 1026.32(a)(1)(i) and (ii) and to add the new prepayment penalty threshold in proposed § 1026.32(a)(1)(iii). These amendments are discussed in detail below.
Section 1431 of the Dodd-Frank Act amended the existing APR trigger in current TILA section 103(aa) by lowering the percentage point trigger and changing the APR benchmark. As noted above, amended TILA section 103(bb)(1)(A)(i) generally provides that a consumer credit transaction is a high-cost mortgage if the APR at consummation of the transaction exceeds the APOR for a comparable transaction by (1) more than 6.5 percentage points for transactions secured by a first mortgage on the consumer's principal dwelling or 8.5 percentage points, if the dwelling is personal property and the total loan amount is less than $50,000; or (2) 8.5 percentage points for transactions secured by a subordinate mortgage on the consumer's principal dwelling.
In addition to adjusting the percentage point triggers, TILA section 103(bb)(1)(A), as added by section 1431 of Dodd-Frank, also amends the benchmark for the APR trigger. The existing APR benchmark is the yield on Treasury securities having comparable periods of maturity. Under TILA section 103(bb)(1)(A)(i), the APR benchmark is the “average prime offer rate,” as defined in TILA section 129C(b)(2)(B). This definition essentially codifies Regulation Z's existing definition of “average prime offer rate” in § 1026.35(a)(2), which would become § 1026.35(a)(2)(ii) in the Bureau's rules.
The Bureau is proposing two alternatives in proposed § 1026.32(a)(1)(i) to implement the APR threshold for a high-cost mortgage under amended TILA section 103(bb)(1)(A)(i). Alternative 1 uses the APR as the rate to be compared to the APOR for determining HOEPA coverage for closed-end mortgage loans. Alternative 2 is substantially identical except that it would substitute a “transaction coverage rate” for the “annual percentage rate” as the rate to be compared to the APOR for closed-end mortgage loans. As discussed further below, the Bureau is proposing Alternative 2 in connection with its proposal to simplify and broaden the general definition of finance charge under Regulation Z.
Both alternatives otherwise generally mirror the statutory language with some exceptions for clarity, organization, or consistency with existing Regulation Z and the Bureau's other mortgage rulemakings as mandated by the Dodd-Frank Act. For example, the proposal refers to a “first-lien” or “subordinate-lien” transaction, instead of a “first mortgage” or “subordinate or junior mortgage.” Further, for the reasons stated in the section-by-section analysis to proposed § 1026.32(a)(1)(ii) below, the proposal refers to “total loan amount” rather than “total transaction amount.”
TILA section 103(bb)(2)(A) and (B) provides the Bureau with authority to adjust the percentage points referenced in the APR threshold if the Bureau determines that the increase or decrease is consistent with the statutory protections for high-cost mortgages and is warranted by the need for credit. The Bureau does not propose to make such a determination at this time, either in conjunction with general implementation of the Dodd-Frank Act or, as discussed further below, in conjunction with the proposed expansion of the definition of finance charge. Therefore, both alternatives retain the numeric triggers in the statute for both closed-end and open-end credit transactions. However, the Bureau seeks comment and data on whether any adjustments to the numeric triggers generally, and in particular for open-end credit transactions, would better protect consumers from the risks associated with high-cost mortgages or are warranted by the need for credit.
In addition, the Bureau notes that the statute sets forth different threshold triggers for first-lien transactions depending on whether the transaction is secured by a dwelling that is personal property and the total loan amount is less than $50,000. The Bureau understands that first-lien transactions that are secured by a dwelling that is personal property, such as certain manufactured housing loans, often have higher APRs than other first-lien transactions secured by a dwelling that is not personal property. Accordingly, the Bureau also seeks comment or data specifically on the separate percentage point trigger for first-lien transactions that are secured by a dwelling that is personal property and for which the total loan amount is less than $50,000, and whether any adjustment to the percentage point or the total loan amount for such first-lien transactions would better protect consumers or is warranted by the need for credit.
Alternative 2 for proposed § 1026.32(a)(1)(i) would account for the changes in the calculation of the finance charge (and thus APR) that the Bureau is separately considering in the 2012 TILA-RESPA Proposal. Under that proposal, creditors would use a simpler, more inclusive definition of the finance charge for closed-end credit secured by real property or a dwelling, which is in turn used to compute the APR that is disclosed to consumers. As discussed in that proposal, the Bureau believes that the expanded definition could have significant benefits to consumers by making the APR a more useful and accurate tool for comparing the overall cost of credit. At the same time, the proposal could benefit creditors by reducing compliance burden and litigation risk because the finance charge calculation would be easier to perform. However, the Bureau recognizes that a more inclusive definition of the finance charge could expand the coverage of HOEPA because closed-end mortgage loans would have higher APRs, which would result in some additional loans being covered as high-cost mortgages.
Currently, TILA and Regulation Z permit creditors to exclude several fees or charges from the finance charge, including most fees or charges imposed by third parties. Consumer groups,
One effect of the expansion of the definition of finance charge, however, would be to expand the number of loans exceeding HOEPA's APR trigger and other statutory and regulatory provisions that incorporate an APR threshold for coverage. As discussed in detail in the Board's 2010 Mortgage Proposal, there are currently some differences between the APR and the APOR, which is the benchmark rate under the Dodd-Frank Act for determining HOEPA coverage. The APOR is generally calculated using data that includes only contract interest rate and points, but not other origination fees.
The Bureau notes that, in response to the Board's 2009 Closed-End Proposal, most industry commenters raised significant concerns about loans being inappropriately covered by HOEPA and potential negative impacts on consumer access to credit. Consumer advocates and some other commenters, however, supported the more inclusive finance charge and the expanded coverage of HOEPA. They maintained that expanded HOEPA coverage was warranted because the more inclusive finance charge would be a more accurate measure of the cost of credit and, therefore, would render HOEPA coverage more accurate as well.
During outreach conducted in conjunction with the Bureau's 2012 TILA-RESPA Proposal, similar concerns were expressed by both industry and consumer advocates. Participants in a Small Business Review Panel and other industry stakeholders expressed concerns that one unintended consequence of a more inclusive definition of finance charge could be that more loans would qualify as high-cost loans subject to additional requirements under TILA section 129 and under similar State laws. Industry stakeholders urged that the proposed revisions to the finance charge be viewed in the context of Dodd-Frank Act rulemakings revising the thresholds for HOEPA and other statutory regimes because of the relationship between the APR and those thresholds. Specifically, they noted that those thresholds are tied to the APR, such that any changes to the APR calculation could be costly to implement and should be done in conjunction with other related changes. Consumer advocates asserted that expanded HOEPA coverage is warranted because the more inclusive definition would provide a more accurate measure of the cost of credit.
The Bureau does not currently have sufficient data to model the impact of the more expansive definition of finance charge on coverage under HOEPA or the impact of potential modifications that the Bureau could make to the triggers to more closely approximate existing coverage levels. As described in the Dodd-Frank Act section 1022 analysis below, the Bureau is working to secure data to assist in analyzing potential impacts. The Bureau seeks comment on its plans for data analysis as described below, as well as additional data and comment on the potential impacts of a broader finance charge definition on coverage under HOEPA and potential modifications to the triggers.
In conjunction with its efforts to quantify the effect of an expanded definition of finance charge, the Bureau is carefully weighing whether modifications may be warranted to approximate coverage levels under the current definition. It is not clear from the legislative history of the Dodd-Frank Act whether Congress was aware of the Board's 2009 Closed-End Proposal to expand the current definition of finance charge or whether Congress considered the interplay between an expanded definition and coverage under the high-cost mortgage provision. In light of this fact and the concerns raised by commenters on the Board's 2009 Closed-End Proposal regarding effects on access to credit, the Bureau believes that it is appropriate to explore alternatives to implementation of the expanded finance charge definition for purposes of HOEPA coverage.
As discussed below, the Bureau has considered two such modifications and is proposing one of them, the TCR, as Alternative 2 to proposed § 1026.32(a)(1)(i). The Bureau seeks comments and data on these and any other potential modifications to HOEPA's APR coverage thresholds. The Bureau also seeks comment on the timing of implementation for any change to the definition of finance charge and any related change to the HOEPA APR threshold, as discussed further below.
Due to data limitations, however, the Bureau does not currently have sufficient information to propose a specific numeric adjustment to the percentage point triggers as a means of approximating current coverage levels in the event that the Bureau adopts the broader definition of finance charge. The Bureau also notes that the Board previously proposed and sought comment on use of the TCR, rather than adjustments to numeric thresholds.
The TCR would not reflect certain costs paid to third parties that would be disclosed to consumers as part of the finance charge under the current and proposed definitions. For example, the current finance charge reflects mandatory credit life insurance, and the proposed more inclusive finance charge would reflect such additional third-party charges as title insurance premiums. However, the TCR would not include either amount.
The Bureau is considering ways to supplement the data analysis described below to better assess this issue, and specifically seeks comment and data on the potential effect of the TCR relative to the APR calculated using both the current and proposed definitions of finance charge. While the Bureau is seeking data to assist it in evaluating alternatives, the Bureau expects that the margin of difference between the TCR and the current APR would be significantly smaller than the margin between the current APR and the APR calculated using the expanded finance charge definition. This expectation is due to the fact that the expanded finance charge definition would add in such large third-party charges as lender's title insurance, whereas relatively few third-party fees would be excluded by the TCR approach that are not already excluded under current rules; mandatory credit life and disability insurance premiums would be in this category, for example, but such insurance typically is offered as voluntary coverage, which is already excluded under current rules. The Bureau consequently expects that, relative to current rules, the TCR would remove from HOEPA coverage fewer overall transactions than the expanded finance charge would add.
Thus, the Bureau believes that the TCR may maintain the primary benefits of HOEPA while also offering other significant benefits. First, the Bureau believes that the TCR would be easier to calculate than the current APR, and could therefore result in reduced compliance burden and litigation costs for creditors. Second, the TCR has been proposed in two prior proposals of the Board relating to higher-priced mortgage loans. Thus, the TCR could provide an efficacious way of achieving a common framework for application of various regulatory thresholds.
At the same time, the Bureau also seeks comment on the potential advantages and disadvantages to both consumers and creditors of using different metrics for purposes of disclosures and for purposes of determining coverage of various regulatory regimes. As discussed above, the Bureau believes that the potential compliance burden is mitigated with regard to TCR because both TCR and APR under the expanded definition of finance charge would be easier to compute than the APR today using the current definition. However, the Bureau seeks comment on the issue generally and in particular on whether use of the TCR or other modifications should be optional, so that creditors could use the broader definition of finance charge to calculate the APR and points and fees triggers if they would prefer. The Board's 2010 Mortgage Proposal structured the TCR as a mandatory requirement out of concern that identical transactions extended by two different creditors could have inconsistent coverage under regulations governing higher-priced mortgage loans, but similarly sought comment on the issue.
The Bureau has authority to modify the APR test in § 1026.32(a)(1)(i) under TILA section 105(a) to carry out the purposes of TILA. In its 2012 TILA-RESPA Proposal, the Bureau is proposing to amend the definition of finance charge to promote the informed use of credit and to facilitate creditors' compliance with disclosure requirements under TILA. Should the Bureau finalize that aspect of the proposal, adoption of the TCR may ensure that the special protections provided under HOEPA are not expanded in a manner that Congress may not have intended or that could impair access to credit.
Furthermore, the Bureau has authority pursuant to TILA section 105(a) to provide additional requirements, classifications, differentiations, or other provisions, and to provide for such adjustments and exceptions for all or any class of transactions as are necessary, in the Bureau's judgment, to effectuate the purposes of TILA and facilitate compliance.
The Bureau also seeks comment on effective dates as part of this rulemaking. The Bureau expects to issue a final rule regarding implementation of the Dodd-Frank Act amendments to HOEPA by January 21, 2013, since the statute will otherwise automatically take effect on that date. The Bureau also expects to issue several other final rules by January 21, 2013, to implement other provisions of title XIV of the Dodd-Frank Act that set similar thresholds for compliance based on mortgage loans' APRs or points and fees. The Bureau is seeking comment on an appropriate implementation period for the final rules.
The Bureau believes that it would be preferable for any change to the definition of finance charge and any related changes to regulatory thresholds to take effect at the same time, in order to provide for consistency and efficient systems modification. The Bureau also believes that it may be advantageous to consumers and creditors for these changes to occur at the same time that creditors are implementing new title XIV requirements involving APR and points and fees thresholds, rather than waiting until the Bureau finalizes other aspects of the 2012 TILA-RESPA final rule relating to disclosures. If the Bureau expands the definition of finance charge, this approach would likely provide the benefits to consumers of the final rule at an earlier date as well as avoid requiring creditors to make two sets of systems and procedures changes focused on determining which loans trigger particular regulatory requirements (
Proposed comment 32(a)(1)(i)-2 clarifies the determination of the average prime offer rate for closed-end mortgage loans. For consistency within Regulation Z regarding the determination of the average prime offer rate for closed-end credit, the proposal cross-references the guidance in current comments 35(a)(2)-1 through -4, which would be renumbered as comments 35(a)(2)(ii)-1 through -4 for organizational purposes.
Proposed comment 32(a)(1)(i)-3 provides guidance on the determination of the average prime offer rate for open-end credit plans by clarifying that creditors use the average prime offer rate for the most closely comparable closed-end mortgage loan based on applicable loan characteristics and other loan pricing terms. The proposal also provides illustrative examples to facilitate compliance.
The Bureau believes this approach is consistent with TILA section 103(bb)(1)(A)(i), which requires a comparison of mortgage transactions' APRs to the average prime offer rate without distinguishing between closed-end and open-end credit. The APOR is currently calculated only for closed-end mortgage products, and the Bureau is unaware of any publicly-available surveys of pricing data for open-end credit plans on which to calculate a separate APOR for open-end credit.
Home-equity lines of credit with a variable rate feature reference an index to determine the interest rate, such as the average prime rate from a consensus of certain lenders as published by the Wall Street Journal (the “prime rate”). Based on historical data, the Bureau understands that the average prime offer rate for one-year adjustable rate mortgages and the prime rate generally have been comparable. The Bureau further understands that many lenders use the prime rate as a reference index. Therefore, the Bureau believes that reliance on the APOR for the most closely comparable closed-end mortgage loan will provide a reasonable benchmark and facilitate compliance, since the tables for average prime offer rates are readily available and any rate spread calculators developed for closed-end mortgages may be adapted to open-end transactions as well. However, the Bureau solicits data or comment on any aspect of determining the average prime offer rate for open-end credit plans. In particular, the Bureau solicits comment on whether an alternative reference rate would better meet the objectives of the APR trigger for open-end credit and would facilitate compliance.
As noted above, proposed § 1026.32(a)(1)(i)(B) provides that the annual percentage rate threshold trigger is 8.5 percentage points over average prime offer rate for first-lien mortgages if the dwelling is personal property and the total loan amount is less than $50,000. Proposed comment 32(a)(1)(i)-
Existing TILA section 103(aa)(1)(B) provides that a mortgage is subject to the restrictions and requirements of HOEPA if the total points and fees payable by the consumer at or before loan closing exceed the greater of eight percent of the total loan amount or $400.
Section 1431(a) of the Dodd-Frank Act amended TILA section 103(aa)(1)(B) to provide that a mortgage is a high-cost mortgage subject to HOEPA if the total points and fees payable in connection with the transaction exceed either five percent or eight percent of the total transaction amount, depending on the transaction. Specifically, under TILA section 103(bb)(1)(A)(ii)(I), a transaction with a total transaction amount of $20,000 or more is a high-cost mortgage if the total points and fees payable in connection with the transaction exceed five percent of the total transaction amount. Under TILA section 103(bb)(1)(A)(ii)(II), a transaction with a total transaction amount of less than $20,000 is a high-cost mortgage if the total points and fees payable in connection with the transaction exceed eight percent of the total transaction amount or $1,000, whichever is less. The proposal implements the Dodd-Frank Act's amendments to TILA's points and fees trigger for high-cost mortgages in proposed § 1026.32(a)(1)(ii)(A)-(B).
Section 1431(a) of the Dodd-Frank Act amended the high-cost mortgage points and fees trigger in TILA section 103(aa)(1)(B), 15 U.S.C. 1602(aa)(1)(B), by providing for the inclusion in points and fees of “the total points and fees payable
Section 1431(a) of the Dodd-Frank Act amended TILA section 103(aa)(1)(B), 15 U.S.C. 1602(aa)(1)(B), to provide that a mortgage is a high-cost mortgage if its total points and fees exceed a certain percentage of the “total transaction amount,” rather than the “total loan amount.” TILA section 103(bb)(1)(A)(ii). The Dodd-Frank Act did not define the term “total transaction amount.” However, the Bureau believes that the phrase reflects the fact that HOEPA, as amended, applies to both closed- and open-end credit transactions secured by a consumer's principal dwelling.
The Bureau proposes to re-number existing comment 32(a)(1)(ii)-2 as proposed comment 32(a)(1)(ii)-1 for organizational purposes, as well as to revise it in several respects to reflect proposed revisions to § 1026.32(a)(1)(ii). First, proposed comment 32(a)(1)(ii)-1 replaces references to the pre-Dodd-Frank statutory figure of $400 with references to the new statutory figure of $1,000.
Existing TILA section 103(aa)(1), 15 U.S.C. 1602(aa)(1), provides that a mortgage is a high-cost mortgage if either its APR or its total points and fees exceed certain statutorily prescribed thresholds. Section 1431(a) of the Dodd-Frank Act amended TILA to add that a transaction is also a high-cost mortgage if the credit transaction documents permit the creditor to charge or collect prepayment fees or penalties more than 36 months after the transaction closing, or if such fees or penalties exceed, in the aggregate, more than two percent of the amount prepaid. TILA section 103(bb)(1)(A)(iii). Proposed § 1026.32(a)(1)(iii) implements TILA section 103(bb)(1)(A)(iii) with several minor clarifications.
First, proposed § 1026.32(a)(1)(iii) provides that the determination as to whether the creditor can charge the specified prepayment penalty is to be made under the “terms of the loan contract or open-end credit agreement,” rather than under the “credit transaction documents.” This phrasing is proposed to reflect the application of proposed § 1026.32(a)(1)(iii) to both closed- and
Proposed comment 32(a)(1)(iii)-1 explains how the prepayment penalty trigger for high-cost mortgages in proposed § 1026.32(a)(1)(iii) interacts with the ban on prepayment penalties for high-cost mortgages in amended TILA section 129(c), 15 U.S.C. 1639(c), which the Bureau proposes to implement in § 1026.32(d)(6). Specifically, proposed comment 32(a)(1)(iii)-1 explains that § 1026.32 implicates prepayment penalties in two main ways. First, under proposed § 1026.32(a)(1)(iii), a closed- or open-end transaction is a high-cost mortgage if, under the terms of the loan contract or credit agreement, a creditor can charge either (i) a prepayment penalty more than 36 months after consummation or account opening, or (ii) total prepayment penalties that exceed two percent of any amount prepaid. Second, if a transaction is a high-cost mortgage by operation of any of the triggers in proposed § 1026.32(a)(1) (
Proposed comment 32(a)(1)(iii)-1 also cross-references proposed § 1026.43(g) (proposed § 226.43(g) in the Board's 2011 ATR Proposal), which proposes to implement new TILA section 129C(c) by (1) prohibiting prepayment penalties for most closed-end mortgages unless the transaction is a fixed-rate, qualified mortgage with an annual percentage rate that meets certain statutorily prescribed thresholds, and (2) restricting prepayment penalties even for such qualified mortgages to three percent, two percent and one percent of the amount prepaid during the first, second, and third years following consummation, respectively.
Proposed comment 32(a)(1)(iii)-2 illustrates how to apply proposed § 1026.32(a)(1)(iii) in the case of an open-end credit plan. To begin, proposed comment 32(a)(1)(iii)-2 clarifies that, if the terms of an open-end credit agreement allow for a prepayment penalty that exceeds two percent of the initial credit limit for the plan, the agreement will be deemed to permit a creditor to charge a prepayment penalty that exceeds two percent of the “amount prepaid” within the meaning of proposed § 1026.32(a)(1)(iii). The comment provides three examples to illustrate the rule.
Proposed comment 32(a)(1)(iii)-2.i explains that a home-equity line of credit with an initial credit limit of $10,000 is a high-cost mortgage under proposed § 1026.32(a)(1)(iii) if the terms of the plan permit the creditor to charge the consumer a flat fee of $500 if the consumer terminates the plan sooner than three years after opening the account. The $500 flat fee is a prepayment penalty (
Proposed comment 32(a)(1)(iii)-3.ii sets forth a second example. This example assumes a home-equity line of credit with an initial credit limit of $10,000 and a ten-year term. The terms of the plan permit the creditor to charge the consumer a $200 fee if the consumer terminates the plan prior to the expiration of the ten-year term. Even though the $200 prepayment penalty is less than two percent of the initial $10,000 credit limit, the home-equity line of credit is a high-cost mortgage under proposed § 1026.32(a)(1)(iii) because the terms of the plan permit the creditor to charge the penalty longer than three years after the consumer opens the account.
Finally, proposed comment 32(a)(1)(iii)-3.iii assumes that the terms of an open-end credit plan with an initial credit limit of $150,000 permit the creditor to charge the consumer for any closing costs paid by the creditor if the consumer terminates the plan less than 36 months after account opening. In the example, the creditor pays $1,000 in closing costs. Of the $1,000, the creditor pays $800 to cover bona fide third-party charges and $200 to cover origination costs incurred by the creditor or its affiliates. Under proposed § 1026.32(b)(8)(ii), the ability to charge the consumer $800 upon early termination to cover bona fide third-party charges is not a prepayment penalty, but the ability to charge $200 for the creditor's or its affiliate's origination costs is a prepayment penalty. The total prepayment penalty of $200 is less than two percent of the plan's initial $150,000 credit limit, and under the terms of the plan the penalty does not apply if the consumer terminates the plan more than 36 months after account opening. Thus, the plan is not a high-cost mortgage under § 1026.32(a)(1)(iii).
TILA section 103(bb)(1)(B) specifies the interest rate used to determine the annual percentage rate for purposes of the APR threshold under TILA section 103(bb)(1)(A)(i). TILA section 103(bb)(1)(B) requires that: (1) In connection with a fixed-rate transaction, the annual percentage rate must be based on the interest rate in effect on the date of consummation; (2) in connection with a transaction with a rate that varies solely in accordance with an index, the annual percentage rate must be based on the interest rate determined by adding the maximum margin permitted at any time during the loan agreement to the index rate in effect on the date of consummation; and (3) in connection with any other transaction in which the
The Bureau proposes to implement these provisions in proposed § 1026.32(a)(2). Specifically, proposed § 1026.32(a)(2)(i) requires that for purposes of the APR trigger, the calculation of the transaction coverage rate or annual percentage rate, as applicable, for a fixed-rate transaction must be based on the interest rate in effect on the date of consummation or account opening. Proposed § 1026.32(a)(2)(ii) requires that for a variable-rate transaction in which the interest rate may vary during the term of the loan or plan in accordance with an index outside the creditor's control, the transaction coverage rate or annual percentage rate, as applicable, must be based on an interest rate that is determined by adding the maximum margin permitted at any time during the term of the loan or plan to the index rate in effect on the date of consummation or account opening. Proposed § 1026.32(a)(2)(iii) requires that for a loan in which the interest rate may vary during the term of the loan, other than a loan as described in § 1026.32(a)(2)(ii), the transaction coverage rate or annual percentage rate, as applicable, must be based on the maximum interest rate that may be imposed during the term of the loan.
As noted above, the Bureau proposes to reference in proposed § 1026.32(a)(2) the “transaction coverage rate” for consistency with Alternative 2 to proposed § 1026.32(a)(1)(i). The Bureau also notes that if the Bureau does not adopt Alternative 2, the references to “transaction coverage rate” in proposed § 1026.32(a)(2) would be removed accordingly. In addition, the Bureau proposes to incorporate references to “account opening” in proposed § 1026.32(a)(2) to clarify that the requirement is also applicable to open-end credit plans. Furthermore, the Bureau proposes to clarify in proposed § 1026.32(a)(2)(ii) that if an interest rate varies in accordance with an index, the index must be outside the creditor's control. The Bureau believes this clarification is necessary and appropriate to effectuate the statutory distinction in treatment between rates that vary with an index and those that “may vary at any time during the term of the loan for any reason.” Additionally, the Bureau is proposing to adopt this clarification pursuant to its authority under TILA 105(a) to prevent circumvention of coverage under HOEPA. The Bureau notes that if the index were in the creditor's control, such as the creditor's own prime lending rate, a creditor could set a low index rate for purposes of § 1026.32(a)(2)(ii), which would not trigger coverage as a high-cost mortgage. However, subsequent to consummation, the creditor could set a higher index rate, at any time, which would have triggered coverage as a high-cost mortgage under § 1026.32(a)(2)(ii). Accordingly, the Bureau notes that if the interest rate varies in accordance with an index that is under the creditor's control, the creditor would determine the annual percentage rate under § 1026.32(a)(2)(iii), not § 1026.32(a)(2)(ii).
Proposed comment 32(a)(2)-1 clarifies that, notwithstanding the existing guidance in comment 17(c)-1 regarding the calculation of the annual percentage rate for discounted and premium variable-rate loans, § 1026.32(a)(2) requires a different calculation of the transaction coverage rate or annual percentage rate, as applicable, for purposes of the high-cost mortgage APR threshold.
Proposed comment 32(a)(2)-2 clarifies that for purposes of § 1026.32(a)(2), the annual percentage rate for an open-end transaction must be determined in accordance with § 1026.32(a)(2), regardless of whether there is an advance of funds at account opening. Proposed comment 32(a)(2)-2 further clarifies that § 1026.32(a)(2) does not require the determination of the annual percentage rate for any extensions of credit subsequent to account opening. In other words, any draw on the credit line subsequent to account opening is not considered to be a separate open-end “transaction” for purposes of determining annual percentage rate threshold coverage.
Proposed comment 32(a)(2)-3 provides additional guidance on the application of § 1026.32(a)(2)(ii) and (iii) to mortgage transactions with interest rates that vary. Specifically, proposed comment 32(a)(2)-3.i provides that § 1026.32(a)(2)(ii) applies when the interest rate is determined by an index that is outside the creditor's control. In addition, proposed comment 32(a)(2)-3.i clarifies that even if the transaction has a fixed-rate discounted introductory or initial interest rate, § 1026.32(a)(2)(ii) requires adding the contractual maximum margin to the fully indexed interest rate, and not the introductory rate. Furthermore, for purposes of determining the maximum margin, proposed comment 32(a)(2)-3.i clarifies that margins that might apply if a preferred rate is terminated must be used, such as where a specified higher margin will apply if the borrower's employment with the creditor ends.
Proposed comment 32(a)(2)-3.ii clarifies that § 1026.32(a)(2)(iii) applies when the interest rates applicable to a transaction may vary, except as described in § 1026.32(a)(2)(ii). Proposed comment 32(a)(2)-3.ii thus specifies that § 1026.32(a)(2)(iii) applies, for example, to a closed-end mortgage loan when interest rate changes are at the creditor's discretion, or where multiple fixed rates apply to a transaction, such as a stepped-rate mortgage.
Proposed comment 32(a)(2)-4 clarifies the application of § 1026.32(a)(2) for home-equity plans that offer fixed-rate and term payment options. The Bureau understands that some variable-rate HELOC plans may permit borrowers to repay a portion or all of the balance at a fixed-rate and over a specified period of time. Proposed comment 32(a)(2)-4 thus provides that, if a HELOC has only a fixed rate during the draw period, a creditor must use that fixed rate to determine the plan's APR, as required by proposed § 1026.32(a)(2)(i). If during the draw period, however, a HELOC has a variable rate but also offers a fixed-rate and -term payment option, a creditor must use the terms applicable to the variable-rate feature to determine the plan's APR, as described in proposed § 1026.32(a)(2)(ii).
The Bureau seeks comment on its proposed rules for determining the APR for HOEPA coverage, including on whether any aspect of the proposal could result in unwarranted, over-inclusive HOEPA coverage of HELOCs. In particular, the Bureau notes that § 1026.40(f) and its commentary generally prohibit creditors from changing the APR on a HELOC unless the change is based on a publicly-available index outside the creditor's control or unless the rate change is specifically set forth in the agreement, such as stepped-rate plans, in which specified fixed rates are imposed for specified periods. Therefore, the Bureau understands that these HELOC restrictions effectively limit the application of proposed § 1026.32(a)(2)(iii) primarily to certain types of closed-end mortgage loans. The Bureau notes that applying proposed § 1026.32(a)(2)(iii) to determine the APR for a variable-rate HELOC could result in over-inclusive coverage of HELOCs under HOEPA because the maximum possible interest rate for many variable-rate HELOCs is pegged to the maximum interest rate permissible under State law. That interest rate, in turn, likely would cause the plan's APR to exceed HOEPA's APR threshold. Therefore, the
Existing TILA section 103(aa)(4), 15 U.S.C. 1602(aa)(4), defines the charges that must be included in points and fees for purposes of determining whether a transaction exceeds the HOEPA points and fees threshold. Section 1431(c)(1) of the Dodd-Frank Act revised and added certain items to this definition.
As part of its 2011 ATR Proposal to implement new TILA section 129C(b)(2)(C)(i) defining points and fees for qualified mortgages, the Board also proposed to implement the Dodd-Frank Act's amendments to the definition of points and fees in existing TILA section 103(aa)(4). Specifically, the Board proposed to amend § 226.32(b)(1) and (2) and to revise and add corresponding commentary.
The Board's 2011 ATR Proposal transferred to the Bureau on July 21, 2011 and its comment period closed on July 22, 2011. As noted above in part I.E, “Other Rulemakings,” the Bureau is in the process of finalizing the Board's 2011 ATR Proposal, including evaluating comments received concerning the Board's proposed amendments to § 226.32(b)(1) and (2). The Bureau believes that issuing multiple, concurrent proposals to implement the Dodd-Frank Act's amendments to existing TILA section 103(aa)(4) concerning the definition of points and fees for high-cost mortgages and qualified mortgages has the potential to cause confusion. In order to minimize such confusion and for ease of reference, the Bureau republishes in this proposal the Board's proposed amendments to § 226.32(b)(1) and (2) substantially as set forth in the Board's 2011 ATR Proposal, with adjustments only to reflect the application of the proposed provisions to high-cost mortgages, to coordinate this proposal with the other mortgage-related rulemakings currently underway at the Bureau, and to conform terminology to existing Regulation Z provisions. These adjustments are noted in the section-by-section analysis to proposed § 1026.32(b)(1) and (2), below. The Bureau is particularly interested in comments concerning newly-proposed language and the application of the definitions in proposed § 1026.32(b)(1) and (2) to the high-cost mortgage context.
The proposal proposes to amend existing § 1026.32(b)(1) to clarify that the charges listed in proposed § 1026.32(b)(1)(i) through (vi) are the charges that must be included in the points and fees calculation for closed-end mortgage loans. Proposed § 1026.32(b)(3) sets forth a separate definition of points and fees for home equity lines of credit.
Existing TILA section 103(aa)(4)(A), 15 U.S.C. 1602(aa)(4)(A), provides that points and fees include all items included in the finance charge, except interest or the time-price differential. Existing TILA section 103(aa)(4)(A) is implemented in § 1026.32(b)(1)(i). The Dodd-Frank Act did not amend TILA section 103(aa)(4)(A), but the Board nevertheless proposed certain clarifying revisions to § 226.32(b)(1)(i) in its 2011 ATR Proposal.
As noted above in part I.E, “Other Rulemakings,” and the section-by-section analysis to proposed § 1026.32(a)(1)(i), the Bureau's 2012 TILA-RESPA Proposal proposes to adopt a simpler, more inclusive definition of the finance charge for closed-end transactions secured by real property or a dwelling, similar to what the Board proposed in its 2009 Closed-End Proposal.
In its 2010 Mortgage Proposal, 75 FR 58539 (Sept. 24, 2010), the Board analyzed the potential impact that a more inclusive definition of finance charge might have on, among other things, the number of loans meeting HOEPA's thresholds. After having reviewed comments received and other market data obtained following publication of the 2009 Closed-End Proposal, the Board in its 2010 Mortgage Proposal proposed to preserve existing HOEPA coverage, notwithstanding the proposed use of the more inclusive finance charge for disclosure purposes.
For the reasons set forth in the Board's 2010 Mortgage Proposal, the Bureau acknowledges that the more inclusive finance charge proposed in the Bureau's 2012 TILA-RESPA Proposal could expand the number of closed-end transactions subject to HOEPA because of points and fees. As noted above, very few HOEPA loans are made, in part because assignees of HOEPA loans are subject to all claims and defenses a consumer could bring against the original creditor. The Bureau therefore seeks comment on whether to amend § 1026.32(b)(1)(i) and comment 32(b)(1)(i)-1 as proposed to prevent expansion of the types of charges included within the definition of points and fees for HOEPA coverage in the event that the Bureau adopts the more inclusive finance charge.
Accordingly, as a starting point, proposed § 1026.32(b)(1)(i) includes in points and fees for closed-end mortgage loans all items included in the finance charge under § 1026.4(a) and (b). However, proposed § 1026.32(b)(1)(i) then expressly excludes from closed-end points and fees the charges that would be brought into points and fees solely by operation of the more inclusive finance charge. Specifically, proposed § 1026.32(b)(1)(i) expressly excludes from points and fees the items described in § 1026.4(c) through (e), except to the extent that other paragraphs of § 1026.32(b)(1) specifically require those items to be included in points and fees. Proposed § 1026.32(b)(1)(i)(A) and (B) retain the statutory exclusion from points and fees of interest or the time-price differential and premiums or other charges for certain mortgage insurance. Proposed comment 32(b)(1)(i)-1 clarifies that charges must be included in points and fees only if they are included in the finance charge under § 1026.4(a) and (b), without reference to any other provision of § 1026.4.
The Bureau does not believe that this proposed amendment to the definition of points and fees for closed-end mortgage loans constitutes an adjustment or exemption requiring the Bureau to invoke its statutory authority under TILA section 105(a). Rather, it is the more inclusive finance charge proposal itself that amounts to an adjustment to TILA. Preserving Regulation Z's existing treatment of points and fees for HOEPA coverage purposes would merely keep the regulation consistent with TILA in that regard, in spite of the adjustment to the finance charge that would be made for disclosure purposes. Indeed, the Bureau notes that the proposed amendment is consistent with the Dodd-Frank Act, which amended TILA section 103(aa)(1) to exclude “bona fide third party charges” from the points and fees calculation. The Bureau seeks comment on its proposed approach. The Bureau is considering and seeks comment on whether, if the proposed amendment were not adopted, the general exclusion of bona fide third-party charges from points and fees (
The Bureau proposes several additional changes to § 1026.32(b)(1)(i) and comments 32(b)(1)(i)-1 through -4 for clarity and consistency. Among other non-substantive changes, the Bureau replaces a reference to loan “closing” with a reference to “consummation” in proposed § 1026.32(b)(1)(i)(B)(
Section 1431(c) of the Dodd-Frank Act amended TILA section 103(aa)(4)(B), 15 U.S.C. 1602(aa)(4)(B), to provide that points and fees includes “all compensation paid directly or indirectly by a consumer or creditor to a mortgage originator from any source, including a mortgage originator that is also the creditor in a table-funded transaction.” This language replaced the phrase “all compensation paid to mortgage brokers.” The Board's 2011 ATR Proposal proposed to implement this statutory change by revising existing § 226.32(b)(1)(ii) and comment 32(b)(1)(ii)-1 and by adding new comments 32(b)(1)(ii)-2 and -3.
TILA section 103(aa)(4)(C), 15 U.S.C. 1602(aa)(4)(C), provides that points and fees include certain real estate-related charges listed in TILA section 106(e), 15 U.S.C. 1605(e). TILA section 103(aa)(4)(C) is implemented in existing § 1026.32(b)(1)(iii). The Dodd-Frank Act did not amend TILA section 103(aa)(4)(C), but the Board nevertheless proposed certain clarifying revisions to
Section 1431(c) of the Dodd-Frank Act amended TILA section 103(aa)(4), 15 U.S.C. 1602(aa)(4), to provide that points and fees include certain credit insurance and debt cancellation or suspension coverage premiums payable at or before closing.
Section 1431(c) of the Dodd-Frank Act amended TILA section 103(aa)(4), 15 U.S.C. 1602(aa)(4), to require the inclusion in points and fees of the maximum prepayment fees and penalties which may be charged or collected under the terms of the credit transaction.
Section 1431(c) of the Dodd-Frank Act amended TILA section 103(aa)(4), 15 U.S.C. 1602(aa)(4), to require the inclusion in points and fees of all prepayment fees or penalties that are incurred by the consumer if the loan refinances a previous loan made or currently held by the same creditor or an affiliate of the creditor.
As noted in the section-by-section analysis to proposed § 1026.32(b)(1)(ii), above, section 1431(c) of the Dodd-Frank Act amended TILA section 103(aa)(4)(B) to replace the term “mortgage brokers” with “mortgage originators.”
As discussed above in the section-by-section analysis to proposed § 1026.32(a), section 1431(a) of the Dodd-Frank Act amended TILA to provide that a “high-cost mortgage” may include an open-end credit plan secured by a consumer's principal dwelling.
Proposed § 1026.32(b)(3)(i) provides that all items included in the finance charge under § 1026.4(a) and (b), except interest or the time-price differential, must be included in points and fees for open-end credit plans, to the extent such items are payable at or before account opening. This provision generally mirrors proposed § 1026.32(b)(1)(i) by providing for the inclusion of such charges in points and fees for closed-end mortgage loans, with the following differences.
First, proposed § 1026.32(b)(3)(i) specifies that the items included in the finance charge under § 1026.4(a) and (b) must be included in points and fees only if they are payable at or before account opening. Proposed comment 32(b)(3)(i)-1 clarifies this provision, which is intended to address the potential confusion that could arise from the fact that certain charges included in the finance charge under § 1026.4(a) and (b) are transaction costs unique to open-end credit plans that often may not be known at account opening. Proposed comment 32(b)(3)(i)-1 thus explains that charges payable after the opening of an open-end credit plan, for example minimum monthly finance charges and service charges based either on account activity or inactivity, need not be included in points and fees for open-end credit plans, even if they are included in the finance charge under § 1026.4(a) and (b). Transaction fees generally are also not included in points and fees for open-end credit plans, except as provided in proposed § 1026.32(b)(3)(vi).
Second, in contrast to proposed § 1026.32(b)(1)(i) for closed-end mortgage loans, proposed § 1026.32(b)(3)(i) for open-end credit plans does not include any language to accommodate the simpler, more inclusive definition of the finance charge proposed in the Board's 2009 Closed-End Proposal.
Finally, the Bureau omits from proposed § 1026.32(b)(3)(i) as unnecessary the exclusion from points and fees set forth in amended TILA section 103(bb)(C) for premiums or guaranties for government-provided or certain private mortgage insurance. The statute provides that the specified charges shall be excluded from total points and fees “under paragraph (4)” (
Proposed § 1026.32(b)(3)(ii) provides for the inclusion in points and fees for open-end credit plans of all items listed in § 1026.4(c)(7) (other than amounts held for future payment of taxes) payable at or before account opening. However, any such charge may be excluded from points and fees if it is reasonable, the creditor receives no direct or indirect compensation in connection with the charge, and the charge is not paid to an affiliate of the creditor. Proposed § 1026.32(b)(3)(ii) mirrors proposed § 1026.32(b)(1)(iii) concerning the inclusion of such charges in points and fees for closed-end mortgage loans. Proposed comment 32(b)(3)(ii)-1 cross-references proposed comment 32(b)(1)(iii)-1 for guidance concerning the inclusion in points and fees of items listed in § 1026.4(c)(7).
Proposed § 1026.32(b)(3)(iii) provides for the inclusion in points and fees for open-end credit plans of premiums or other charges payable at or before account opening for any credit life, credit disability, credit unemployment, or credit property insurance, or any other life, accident, health, or loss-of-income insurance, or any payments directly or indirectly for any debt cancellation or suspension agreement or contract. Proposed § 1026.32(b)(3)(iii) mirrors proposed § 1026.32(b)(1)(iv) concerning the inclusion of such charges for closed-end mortgage loans. Proposed comment 32(b)(3)(iii)-1 cross-references proposed comments 32(b)(1)(iv)-1 and -2 for guidance concerning the inclusion in points and fees of premiums for credit insurance and debt cancellation or suspension coverage.
Proposed § 1026.32(b)(3)(iv) provides for the inclusion in points and fees for open-end credit plans of the maximum prepayment penalty that may be charged or collected under the terms of the plan. This provision mirrors proposed § 1026.32(b)(1)(v) concerning the inclusion of maximum prepayment penalties for closed-end mortgage loans, except that proposed § 1026.32(b)(3)(iv) cross-references the definition of prepayment penalty provided for open-end credit plans in proposed § 1026.32(b)(8)(ii).
Proposed § 1026.32(b)(3)(v) provides for the inclusion in points and fees for open-end credit plans of “any fees charged for participation in an open-end credit plan, as described in § 1026.4(c)(4), whether assessed on an annual or other periodic basis.” The Bureau notes that the fees described in § 1026.4(c)(4) (
Proposed comment 32(b)(3)(v)-1 thus clarifies that proposed § 1026.32(b)(3)(v) requires the inclusion in points and fees of annual fees or other periodic maintenance fees that the consumer must pay to retain access to the open-end credit plan. The comment clarifies that, for purposes of the points and fees test, a creditor should assume that any annual fee is charged each year for the original term of the plan. Thus, for example, if the terms of a home-equity line of credit with a ten-year term
The Bureau requests comment on the inclusion of fees described in § 1026.4(c)(4) in points and fees for open-end credit plans, including on whether additional guidance is needed concerning how to calculate such fees for plans that do not have a definite plan length.
As noted above, new TILA section 103(bb)(5) specifies, in part, that the calculation of points and fees for open-end credit plans must include “the minimum additional fees the consumer would be required to pay to draw down an amount equal to the total credit line.” The Bureau proposes to implement this requirement in § 1026.32(b)(3)(vi). Specifically, proposed § 1026.32(b)(3)(vi) provides for inclusion in the calculation of points and fees for open-end credit plans of any transaction fee, including any minimum fee or per-transaction fee, that will be charged for a draw on the credit line. Proposed § 1026.32(b)(3)(vi) clarifies that a transaction fee that is assessed when a consumer draws on the credit line must be included in points and fees whether or not the consumer draws the entire credit line. The Bureau believes that any transaction fee that would be charged for a draw on the credit line would include any transaction fee that would be charged to draw down an amount equal to the total credit line.
The Bureau interprets the requirement in amended TILA section 103(bb)(5) to include the “minimum additional fees” that will be imposed on the consumer to draw an amount of credit equal to the total credit line as requiring creditors to assume that a consumer will make at least one such draw during the term of the credit plan. The Bureau recognizes that creditors will not know at account opening how many times (if ever) a consumer will draw the entire amount of the credit line. For clarity and ease of compliance, the Bureau interprets the statute to require the creditor to assume one such draw. Proposed comment 32(b)(3)(vi)-1 clarifies this requirement by providing the following example: if the terms of the open-end credit plan permit the creditor to charge a $10 transaction fee each time the consumer draws on the credit line, the creditor must include one $10 charge in the points and fees calculation. The Bureau solicits comment on the requirement to include in points and fees the charge assessed for one draw of the total credit line and on whether additional guidance is needed in the case of an open-end credit plan that sets a maximum amount per draw.
Proposed comment 32(b)(3)(vi)-2 clarifies that, if the terms of the open-end credit plan permit a consumer to draw on the credit line using either a variable-rate feature or a fixed-rate feature, proposed § 1026.32(b)(3)(vi) requires the creditor to use the terms applicable to the variable-rate feature for determining the transaction fee that must be included in the points and fees calculation.
The Bureau does not at this time propose to include in the calculation of points and fees for open-end credit plans compensation paid to originators of open-end plans.
As discussed above in the section-by-section analysis to proposed § 1026.32(b)(1)(ii), section 1431(c) of the Dodd-Frank Act amended TILA section 103(aa)(4)(B) to require mortgage originator compensation to be included in the existing calculation of points and fees. At the same time, however, section 1401 of the Dodd-Frank Act amended TILA section 103 to define a “mortgage originator” as a person who undertakes specified actions with respect to a “residential mortgage loan application” or in connection with a “residential mortgage loan.” Section 1401 further defined the term “residential mortgage loan” to exclude a consumer credit transaction under an open-end credit plan.
Given that the Dodd-Frank Act does not specify in amended TILA section 103(bb)(5) concerning open-end points and fees that compensation paid to originators of open-end credit plans be included in the calculation of points and fees, the Bureau believes that it is reasonable to conclude that Congress did not intend for such compensation to be included. Accordingly, the Bureau is not proposing at this time to include in the calculation of points and fees for open-end credit plans compensation paid to originators of open-end credit plans. The Bureau believes that any incentive to evade the closed-end, high-cost mortgage points and fees threshold by structuring a transaction as an open-end credit plan can be addressed through the prohibition in TILA against structuring a transaction as an open-end credit plan to evade HOEPA.
The Bureau notes that amended TILA section 103(bb)(4)(G) grants the Bureau authority to include in points and fees such other charges that it determines to be appropriate. The Bureau thus requests comment on the proposed definition of points and fees for open-end credit plans, including on whether any additional fees should be included in the definition. In particular, the Bureau requests comment on whether compensation paid to originators should be included in the calculation of points and fees from open-end credit plans. The Bureau recognizes that neither TILA nor Regulation Z currently addresses compensation paid to originators of open-end credit plans and accordingly requests comment on the operational issues that would be entailed in tracking such compensation for inclusion in the points and fees calculation. The Bureau also requests comment on whether the guidance and examples set forth in proposed § 1026.32(b)(1)(ii) and comments 32(b)(1)(ii)-1 and -2 concerning closed-end loan originator compensation would provide sufficient guidance to creditors in open-end credit plans, or whether additional or different guidance would be of assistance in the open-end context.
Proposed § 1026.32(b)(4) excludes from points and fees for open-end credit plans any charge that would otherwise be included if the creditor waives the charge at or before account opening, unless the creditor may assess the charge after account opening. Proposed comment 32(b)(4)-1 provides an example of the rule. The example explains that a creditor that waives a $300 processing fee at the opening of an open-end credit plan with a ten-year term must include the $300 fee in points and fees if the terms of the open-end credit plan provide that the consumer must repay the fee if the consumer terminates the plan,
Proposed § 1026.32(b)(5)(i)-(ii) implements amended TILA section 103(bb)(1)(A)(ii) and (ee), which excludes two categories of charges from points and fees for purposes of determining whether a transaction is a high-cost mortgage. The charges, discussed in turn below, are: (1) any
Proposed § 1026.32(b)(5)(i) excludes from the points and fees calculation any bona fide third-party charge not retained by the creditor, loan originator, or an affiliate of either, unless the charge is a premium for private mortgage insurance that is required to be included in points and fees for closed-end mortgage loans under proposed § 1026.32(b)(1)(i)(B). Proposed § 1026.32(b)(5)(i) implements TILA section 103(bb)(1)(A)(ii), which specifically excludes from the high-cost mortgage points and fees calculation any bona fide third party charges not retained by the mortgage originator, creditor, or an affiliate of the creditor or mortgage originator. 15 U.S.C. 1602(bb)(1)(A)(ii).
For consistency and to facilitate compliance, proposed § 1026.32(b)(5)(i) mirrors, with one exception, proposed § 226.43(e)(3)(ii)(A) as set forth in the Board's 2011 ATR Proposal. The Board's proposed § 226.43(e)(3)(ii)(A) would implement TILA section 129C(b)(2)(C), which excludes the same categories of bona fide third party charges from points and fees for qualified mortgages that TILA section 103(bb)(1)(A)(ii) excludes from points and fees for high-cost mortgages.
Proposed § 1026.32(b)(5)(i) differs from the Board's proposed § 226.43(e)(3)(ii)(A) in one minor respect to address the application of HOEPA to open-end credit plans. Specifically, amended TILA section 103(bb)(1)(A)(ii) excludes from points and fees for high-cost mortgages bona fide third-party charges “not retained by the creditor, mortgage originator,” or an affiliate of either. However, as discussed above in the section-by-section analysis to proposed § 1026.32(b)(3), originators of open-end credit plans are not “mortgage originators” as that term is defined in amended TILA section 103. Thus, TILA section 103(bb)(1)(A)(ii) does not by its terms exclude from points and fees bona fide third-party charges not retained by an originator of an open-end credit plan. The Bureau believes bona fide third-party charges not retained by a loan originator should be excluded from points and fees whether the originator is originating a closed-end mortgage or an open-end credit plan. Accordingly, proposed § 1026.32(b)(5)(i) states that, for purposes of § 1026.32(b)(5)(i), the term “loan originator” means a loan originator as that term is defined in § 1026.36(a)(1) (
Proposed comment 32(b)(5)(i)-1 clarifies that § 1026.36(a)(1) and comment 36(a)-1 provide additional guidance concerning the meaning of the term “loan originator” for purposes of § 1026.32(b)(5)(i). Proposed comment 32(b)(5)(i)-2 provides an example for purposes of determining whether a charge may be excluded from points and fees as a bona fide third-party charge. Proposed comment 32(b)(5)(i)-2 assumes that, prior to loan consummation, a creditor pays $400 for an appraisal conducted by a third-party not affiliated with the creditor. At consummation, the creditor charges the consumer $400 and retains that amount as reimbursement for the fee that the creditor paid to the third-party appraiser. For purposes of determining whether the transaction is a high-cost mortgage, the creditor need not include in points and fees the $400 that it retains as reimbursement.
As discussed above in the section-by-section analysis to proposed § 1026.32(b)(1)(i)(B), the Dodd-Frank Act amended TILA to add section 103(bb)(1)(C)(ii), which excludes private mortgage insurance premiums that meet certain conditions from the closed-end points and fees calculation for high-cost mortgages. For consistency with TILA section 103(bb)(1)(C)(ii), as implemented by proposed § 1026.32(b)(1)(i)(B), the Bureau proposes to implement TILA's general exclusion of bona fide third-party charges from the points and fees calculation for high-cost mortgages in proposed § 1026.32(b)(5)(i) with the caveat that certain private mortgage insurance premiums must be included in points and fees for closed-end mortgage loans as set forth in proposed § 1026.32(b)(1)(i)(B).
Proposed comment 32(b)(5)(i)-3 addressing private mortgage insurance premiums mirrors proposed comment 43(e)(3)(ii)-2 in the Board's 2011 ATR Proposal, except that proposed comment 32(b)(5)(i)-3 states that it applies for purposes of determining whether a mortgage is a high-cost mortgage, rather than a qualified mortgage. Proposed comment 32(b)(5)(i)-3 also specifies that this approach to private mortgage insurance premiums is relevant only for closed-end transactions, for the reasons discussed in the section-by-section analysis to proposed § 1026.32(b)(1)(i)(B), above.
Section 1431(d) of the Dodd-Frank Act added new section 103(dd) to TILA, which permits a creditor to exclude, under certain circumstances, up to two bona fide discount points from the calculation of points and fees for purposes of determining whether a transaction is a high-cost mortgage. Proposed § 1026.32(b)(5)(ii)(A) through (C) implement TILA section 103(dd), with certain clarifications discussed below. The Bureau notes that new TILA section 103(dd) is substantially similar to new TILA section 129C(b)(2)(C)(ii)-(iv), which provides for the exclusion of
Proposed § 1026.32(b)(5)(ii)(A)(
Under proposed § 1026.32(b)(5)(ii)(A)(
Under proposed § 1026.32(b)(5)(ii)(A)(
Proposed § 1026.32(b)(5)(ii)(B) implements TILA section 103(dd)(2), which permits a creditor to exclude from the high-cost mortgage points and fees calculation up to one bona fide discount point payable by the consumer in connection with the transaction.
Under proposed § 1026.32(b)(5)(ii)(B)(
Under proposed § 1026.32(b)(5)(ii)(B)(
Proposed comment 32(b)(5)(ii)-1 clarifies how to determine, for purposes of the bona fide discount point exclusion in proposed § 1026.32(b)(5)(ii)(A)(
Proposed § 1026.32(b)(5)(ii)(C) cross-references proposed § 1026.43(e)(3)(iv) (proposed § 1026.43(e)(3)(iv) as set forth in the Board's 2011 ATR Proposal) for purposes of determining whether a discount point is “bona fide” and excludable from the high-cost mortgage points and fees calculation.
As noted above in the section-by-section analysis to proposed § 1026.32(a)(1)(ii), the Bureau proposes for organizational purposes (1) to move the existing definition of “total loan amount” for closed-end mortgage loans from comment 32(a)(1)(ii)-1 to proposed § 1026.32(b)(6)(i), and (2) to move the examples showing how to calculate the total loan amount for closed-end mortgage loans from existing comment 32(a)(1)(ii)-1 to proposed comment 32(b)(6)(i)-1. The Bureau also proposes certain changes to the total loan amount
The Bureau proposes to move existing comment 32(a)(1)(ii)-1 concerning calculation of the “total loan amount” to proposed § 1026.32(b)(6)(i) and comment 32(b)(6)(i)-1 and to specify that the calculation applies to closed-end mortgage loans. The Bureau also proposes to amend the definition of “total loan amount” so that the “amount financed,” as calculated pursuant to § 1026.18(b), is no longer the starting point for the total loan amount calculation. The Bureau believes this amendment both streamlines the total loan amount calculation to facilitate compliance and is sensible in light of the more inclusive definition of the finance charge proposed in the Bureau's 2012 TILA-RESPA Proposal. One effect of the proposed more inclusive finance charge generally could be to reduce the “amount financed” for many transactions. The Bureau thus proposes no longer to rely on the “amount financed” calculation as the starting point for the “total loan amount” in HOEPA. The Bureau instead proposes to define “total loan amount” as the amount of credit extended at consummation that the consumer is legally obligated to repay, as reflected in the loan contract, less any cost that is both included in points and fees under § 1026.32(b)(1) and financed by the creditor. Proposed comment 32(b)(6)(i)-1 provides an example of the Bureau's proposed “total loan amount” calculation.
The Bureau requests comment on the appropriateness of its revised definition of “total loan amount,” particularly on whether additional guidance is needed in light of the prohibition against financing of points and fees for high-cost mortgages. Specifically, the Bureau notes that, under this proposal, financed points are relevant for two purposes. First, financed points and fees must be excluded from the total loan amount for purposes of determining whether the closed-end mortgage loan is covered by HOEPA under the points and fees trigger. Second, if a mortgage loan is a high-cost mortgage through operation of any of the HOEPA triggers, the creditor is prohibited from financing points and fees by, for example, including points and fees in the note amount or financing them through a separate note.
Notwithstanding that the proposal bans the financing of points and fees for high-cost mortgages, the Bureau believes that, for purposes of determining HOEPA coverage (and thus whether the ban applies) creditors should be required to deduct from the amount of credit extended to the consumer any points and fees that the creditor would finance if the transaction were not subject to HOEPA.
The following example illustrates how the provisions concerning financed points and fees in proposed §§ 1026.32(b)(6)(i) and 1026.34(a)(10) would work together. First, assume that, under the terms of the mortgage loan contract, the consumer is legally obligated to repay $50,000. A portion of that amount, $2,450, represents the total amount of points and fees (as defined under proposed § 1026.32(b)(1)) payable in connection with the transaction. If the $2,450 in financed points and fees were not excluded from the total loan amount, then the transaction would fall below the five percent points and fees threshold for high-cost mortgages ($2,450 divided by $50,000 equals 4.9 percent of the total loan amount) and none of HOEPA's protections, including the ban on financing of points and fees, would apply. In contrast, under the Bureau's proposal, the $2,450 in points and fees is deducted from the total amount of credit extended to the consumer to arrive at a total loan amount of $47,550, and the transaction is a high-cost mortgage pursuant to proposed § 1026.32(a)(1)(ii) ($2,450 divided by $47,550 equals 5.15 percent of the total loan amount). Pursuant to proposed § 1026.34(a)(10), then, the creditor would be prohibited from including the points and fees in the note amount, or financing them through a separate note.
Proposed § 1026.32(b)(6)(ii) provides that the “total loan amount” for an open-end credit plan is the credit limit for the plan when the account is opened. The Bureau requests comment as to whether additional guidance is needed concerning the “total loan amount” for open-end credit plans.
The proposal re-numbers existing § 1026.32(b)(2) defining the term “affiliate” as proposed § 1026.32(b)(7) for organizational purposes.
Section 1026.32 currently addresses prepayment penalties in § 1026.32(d)(6) and (7). Existing § 1026.32(d)(6) implements existing TILA section 129(c)(1) by defining the term “prepayment penalty” for high-cost mortgages as a penalty for paying all or part of the principal before the date on which the principal is due, including by computing a refund of unearned scheduled interest in a manner less favorable than the actuarial method, as defined by section 933(d) of the Housing and Community Development Act of 1992. 15 U.S.C. 1639(c)(1). Existing § 1026.32(d)(7) implements TILA section 129(c)(2), 15 U.S.C. 1639(c)(2), by specifying when a creditor may impose a prepayment penalty in connection with a high-cost mortgage. Prior to the Dodd-Frank Act, the substantive limitations on prepayment penalties in TILA section 129(c)(1) and (2) were the only statutorily-prescribed limitations on prepayment penalties, other than certain disclosure requirements set forth in TILA section 128(a)(11) and (12).
Sections 1431 and 1432 of the Dodd-Frank Act (relating to high-cost mortgages) and section 1414 of the Dodd-Frank Act (relating to qualified mortgages) amended TILA to further restrict and, in many cases, prohibit the imposition of prepayment penalties in dwelling-secured credit transactions. The Dodd-Frank Act restricted prepayment penalties in three main ways.
Taken together, the Dodd-Frank Act's amendments to TILA relating to prepayment penalties mean that most closed-end, dwelling-secured transactions (1) May provide for a prepayment penalty only if they are fixed-rate, qualified mortgages that are neither high-cost nor higher-priced under §§ 1026.32 and 1026.35; (2) may not, even if permitted to provide for a prepayment penalty, charge the penalty more than three years following consummation or in an amount that exceeds two percent of the amount prepaid;
In its 2009 Closed-End Proposal, the Board proposed to establish a new § 226.38(a)(5) for disclosure of prepayment penalties for closed-end mortgage transactions.
The Board's 2011 ATR Proposal proposed to implement the Dodd-Frank Act's prepayment penalty-related amendments to TILA for qualified mortgages by defining “prepayment penalty” for most closed-end, dwelling-secured transactions in new § 226.43(b)(10), and by cross-referencing proposed § 226.43(b)(10) in the proposed joint definition of points and fees for qualified and high-cost mortgages in § 226.32(b)(1)(v) and (vi).
To provide guidance as to the meaning of “prepayment penalty” for § 1026.32 that is consistent with the definition proposed in the Bureau's 2012 TILA-RESPA Proposal (which itself draws from the definitions proposed in the Board's 2009 Closed-End Proposal, 2010 Mortgage Proposal, and 2011 ATR Proposal), as well as to provide guidance in the context of open-end credit plans, the Bureau proposes new § 1026.32(b)(8) to define the term “prepayment penalty” for purposes of § 1026.32.
Consistent with TILA section 129(c)(1), existing § 1026.32(d)(6), and the Board's proposed § 226.43(b)(10) for qualified mortgages, proposed § 1026.32(b)(8)(i) provides that, for a closed-end mortgage loan, a “prepayment penalty” means a charge imposed for paying all or part of the transaction's principal before the date on which the principal is due.
Proposed comment 32(b)(8)-1.i through -1.iv gives the following examples of prepayment penalties: (1) A charge determined by treating the loan balance as outstanding for a period of time after prepayment in full and applying the interest rate to such “balance,” even if the charge results from interest accrual amortization used for other payments in the transaction under the terms of the loan contract; (2) a fee, such as an origination or other loan closing cost, that is waived by the creditor on the condition that the consumer does not prepay the loan; (3) a minimum finance charge in a simple interest transaction; and (4) computing a refund of unearned interest by a method that is less favorable to the consumer than the actuarial method, as defined by section 933(d) of the Housing and Community Development Act of 1992, 15 U.S.C. 1615(d). Proposed comment 32(b)(8)-1.i further clarifies that “interest accrual amortization” refers to the method by
Proposed comment 32(b)(8)-3.i through -3.ii clarifies that a prepayment penalty does not include: (1) Fees imposed for preparing and providing documents when a loan is paid in full, or when an open-end credit plan is terminated, if the fees apply whether or not the loan is prepaid or the plan is terminated prior to the expiration of its term, such as a loan payoff statement, a reconveyance document, or another document releasing the creditor's security interest in the dwelling that secures the loan; or (2) loan guarantee fees.
The definition of prepayment penalty in proposed § 1026.32(b)(8)(i) and comments 32(b)(8)-1 and 32(b)(8)-3.i and .ii substantially incorporates the definitions of and guidance on prepayment penalties from the Board's 2009 Closed-End Proposal, 2010 Mortgage Proposal, and 2011 ATR Proposal and, as necessary, reconciles their differences. For example, the Bureau is proposing to incorporate the language from the Board's 2009 Closed-End Proposal and 2010 Mortgage Proposal but omitted in the Board's 2011 ATR Proposal listing a minimum finance charge as an example of a prepayment penalty and stating that loan guarantee fees are not prepayment penalties, because similar language is found in longstanding Regulation Z commentary. Based on the differing approaches taken by the Board in its recent mortgage proposals, however, the Bureau seeks comment on whether a minimum finance charge should be listed as an example of a prepayment penalty and whether loan guarantee fees should be excluded from the definition of prepayment penalty.
The Bureau expects to coordinate the definition of prepayment penalty in proposed § 1026.32(b)(8)(i) with the definitions in the Bureau's other pending rulemakings mandated by the Dodd-Frank Act concerning ability-to-repay, TILA-RESPA mortgage disclosure integration, and mortgage servicing. To the extent consistent with consumer protection objectives, the Bureau believes that adopting a consistent definition of “prepayment penalty” across its various pending rulemakings affecting closed-end mortgages will facilitate compliance.
Proposed § 1026.32(b)(8)(ii) defines the term “prepayment penalty” for open-end credit plans. Specifically, proposed § 1026.32(b)(8)(ii) provides that, in connection with an open-end credit plan, the term “prepayment penalty” means any fee that may be imposed by the creditor if the consumer terminates the plan prior to the expiration of its term.
Proposed comment 32(b)(8)-2 clarifies that, for an open-end credit plan, the term “prepayment penalty” includes any charge imposed if the consumer terminates the plan prior to the expiration of its term, including, for example, if the consumer terminates the plan in connection with obtaining a new loan or plan with the current holder of the existing plan, a servicer acting on behalf of the current holder, or an affiliate of either. Proposed comment 32(b)(8)-2 further clarifies that the term “prepayment penalty” includes a waived closing cost that must be repaid if the consumer terminates the plan prior to the end of its term, except that the repayment of waived bona fide third-party charges if the consumer terminates the credit plan within 36 months after account opening is not considered a prepayment penalty. The Bureau's proposal provides for a threshold of 36 months to clarify that, if the terms of an open-end credit plan permit a creditor to charge a consumer for waived third-part closing costs when, for example, the consumer terminates the plan in year nine of a ten-year plan, such charges would be considered prepayment penalties and would cause the open-end credit plan to be classified as a high-cost mortgage. The Bureau believes that the 36-month time limit is consistent both with the prepayment penalty trigger and with industry practice in the open-end credit context.
The Bureau notes that the proposal distinguishes the inclusion of waived closing costs in the open- and closed-end credit contexts. In the open-end credit context, the Bureau's proposal provides that waived third-party closing costs that must be repaid if the consumer terminates the open-end credit plan sooner than three years after account opening are not considered prepayment penalties for purposes of triggering HOEPA coverage, whereas such charges would be considered prepayment penalties for closed-end mortgage loans. The Bureau believes that a different treatment of such charges is an appropriate use of its authority under TILA section 105(a) to prescribe regulations that contain such differentiations as are necessary to facilitate compliance with the regulation. Specifically, the Bureau understands that, unlike for closed-end mortgage loans, waived closing costs are
Proposed comment 32(b)(8)-3.iii specifies that, in the case of an open-end transaction, the term “prepayment penalty” does not include fees that the creditor may impose on the consumer to maintain the open-end credit plan, when an event has occurred that otherwise would permit the creditor to terminate and accelerate the plan. The exclusion from prepayment penalties of fees that a creditor in an open-end transaction may impose in lieu of terminating and accelerating a plan mirrors the exclusion of such fees as prepayment penalties required to be disclosed to the consumer as proposed in the Board's 2009 Open-End Proposal.
The Bureau requests comment on its proposed definition of “prepayment penalty” for open-end credit plans and on whether any additional charges should be included in or excluded from the definition.
TILA section 129(a) requires additional disclosures for high-cost mortgages, and these requirements are implemented in § 1026.32(c). The Bureau proposes to amend § 1026.32(c) to provide clarification and further guidance on the application of these disclosure requirements to open-end credit plans.
The Bureau proposes comment 32(c)(2)-1 to clarify how to disclose the annual percentage rate for an open-end high-cost mortgage. Specifically, proposed comment 32(c)(2)-1 clarifies that creditors must comply with § 1026.6(a)(1). In addition, the proposed comment states that if the transaction offers a fixed-rate for a period of time, such as a discounted initial interest rate, § 1026.32(c)(2) requires a creditor to disclose the annual percentage rate of the fixed-rate discounted initial interest rate, and the rate that would apply when the feature expires.
The Bureau proposes to clarify § 1026.32(c)(3), which requires disclosure of the regular payment and the amount of any balloon payment. Balloon payments generally are no longer permitted for high-cost mortgages, except in certain narrow circumstances, as discussed below. Proposed § 1026.32(c)(3)(i) incorporates the requirement in current § 1026.32(c)(3) for closed-end mortgage loans and clarifies that the balloon payment disclosure is required to the extent a balloon payment is specifically permitted under § 1026.32(d)(1).
For open-end credit plans, a creditor may not be able to provide a disclosure on the “regular” payment applicable to the plan because the regular monthly (or other periodic) payment will depend on factors that will not be known at the time the disclosure is required, such as the amount of the extension(s) of credit on the line and the rate applicable at the time of the draw or the time of the payment. In order to facilitate compliance and to provide consumers with meaningful disclosures, the Bureau proposes § 1026.32(c)(3)(ii) to require creditors to disclose an example of a minimum periodic payment for open-end high-cost mortgages. Accordingly, proposed § 1026.32(c)(3)(ii)(A) provides that for open-end credit plans, a creditor must disclose payment examples showing the first minimum periodic payment for the draw period, and if applicable, any repayment period and the balance outstanding at the beginning of any repayment period. Furthermore, this example must be must be based on the following assumptions: (1) The consumer borrows the full credit line, as disclosed in § 1026.32(c)(5)(B) at account opening and does not obtain any additional extensions of credit; (2) the consumer makes only minimum periodic payments during the draw period and any repayment period; and (3) the annual percentage rate used to calculate the sample payments will remain the same during the draw period and any repayment period. Proposed § 1026.32(c)(3)(ii)(A)(3) further requires that the creditor provide the minimum periodic payment example based on the annual percentage rate for the plan, as described in § 1026.32(c)(2), except that if an introductory annual percentage rate applies, the creditor must use the rate that would otherwise apply to the plan after the introductory rate expires.
As discussed in detail below, the Bureau is proposing § 1026.32(d)(1)(iii) to provide an exemption to the prohibition on balloon payments for certain open-end credit plans. Accordingly, to the extent permitted under § 1026.32(d)(1), proposed § 1026.32(c)(3)(ii)(B) requires disclosure of that fact and the amount of the balloon payment based on the assumptions described in § 1026.32(c)(3)(ii)(A).
To reduce potential consumer confusion, proposed § 1026.32(c)(3)(ii)(C) requires that a creditor provide a statement explaining the assumptions upon which the § 1026.32(c)(3)(ii)(A) payment examples are based. Furthermore, for the same reason, proposed § 1026.32(c)(3)(ii)(D) requires a statement that the examples are not the consumer's actual payments and that the consumer's actual periodic payments will depend on the amount the consumer has borrowed and interest rate applicable to that period. The Bureau believes that without such statements, consumers could misunderstand the minimum payment examples. However, the Bureau solicits comment on these proposed statements and whether other language would be appropriate and beneficial to consumer.
The Bureau proposes to revise comment 32(c)(3)-1 to reflect the expanded statutory restriction on balloon payments and to clarify that to the extent a balloon payment is permitted under § 1026.32(d)(1), the balloon payment must be disclosed under § 1026.32(c)(3)(i). In addition, the Bureau proposes to renumber current comment 32(c)(3)-1 as proposed comment 32(c)(3)(i)-1 for organizational purposes.
In order to provide additional guidance on the application of § 1026.32(c)(4) to open-end credit plans, the Bureau proposes to revise comment 32(c)(4)-1. For an open-end credit plan, proposed comment 32(c)(4)-1 provides that the disclosure of the maximum monthly payment, as required under § 1026.32(c)(4), must be based on the following assumptions: (1) The consumer borrows the full credit line at account opening with no additional extensions of credit; (2) the consumer makes only minimum periodic payments during the draw period and any repayment period; and (3) the maximum annual percentage rate that may apply under the payment plan, as required by § 1026.30, applies to the plan at account opening. Although actual payments on the plan may depend on various factors, such as the amount of the draw and the rate applicable at that time, the Bureau believes this approach is consistent with existing guidance to calculate the “worst-case” payment example.
The Bureau proposes to amend § 1026.32(c)(5) to clarify the disclosure requirements for open-end credit plans. The Bureau notes that the amount borrowed can be ascertained in a closed-end mortgage loan but typically is not
The Dodd-Frank Act amended the restrictions on balloon payments under TILA section 129(e). Specifically, amended TILA section 129(e) provides that no high-cost mortgage may contain a scheduled payment that is more than twice as large as the average of earlier scheduled payments, except when the payment schedule is adjusted to the seasonal or irregular income of the consumer. The Bureau is proposing two alternatives in proposed § 1026.32(d)(1)(i) to implement the balloon payment restriction under amended TILA section 129(e). Under Alternative 1, proposed § 1026.32(d)(1)(i) incorporates the statutory language and defines balloon payment as a scheduled payment that is more than twice as large as the average of regular periodic payments. Under Alternative 2, the Bureau mirrors Regulation Z's existing definition of “balloon payment” in § 1026.18(s)(5)(i). Accordingly, proposed § 1026.32(d)(1)(i) provides that a balloon payment is “a payment schedule that is more than two times a regular periodic payment.” This definition is similar to the statutory definition under the Dodd-Frank Act, except that it uses as its benchmark any regular periodic payment, rather than the average of earlier scheduled payments.
Because the existing regulatory definition is narrower than the statutory definition, the Bureau believes that a payment that is twice any one regular periodic payment would be equal to or less than a payment that is twice the average of earlier scheduled payments. The Bureau notes that the range of scheduled payment amounts under Alternative 2 is more limited and defined. For example, if the regular periodic payment on a high-cost mortgage is $200, a payment of greater than $400 would constitute a balloon payment. Under Alternative 1, however, the balloon payment amount could be greater than $400 if, for example, the regular periodic payments were increased by $100 each year. Under Alternative 1, the amount constituting a balloon payment could increase with the incremental increase of the average of earlier scheduled payments.
The Bureau proposes Alternative 2 pursuant to its authority under TILA section 129(p)(1). The Bureau may exempt specific mortgage products or categories of mortgages from certain prohibitions under TILA section 129 if the Bureau finds that the exemption is in the interest of the borrowing public and will apply only to products that maintain and strengthen home ownership and equity protection. The Bureau believes that under Alternative 2, consumers would have a better understanding of the highest possible regular periodic payment in a repayment schedule and may experience less “payment shock” as a result. Therefore, the Bureau believes that Alternative 2 would better protect consumers and be in their interest. In addition, the Bureau believes that the definition of balloon payment under Alternative 2 would facilitate and simplify compliance by providing creditors with a single definition within Regulation Z and alleviating the need to average earlier scheduled payments. The Bureau notes that a similar adjustment is proposed in the 2012 TILA-RESPA Proposal.
The Bureau solicits comment on both alternatives. Under either alternative, a high-cost mortgage generally must provide for fully amortizing payments. Therefore, for similar reasons as stated in the Board's 2011 ATR Proposal,
Proposed comment 32(d)(1)(i)-1 provides further guidance on the application of § 1026.32(d)(1)(i) under both proposed alternatives. Specifically, the Bureau proposes clarifying that for purposes of open-end transactions, the term “regular periodic payment” or “periodic payment” means the required minimum periodic payment.
The Bureau proposes to revise § 1026.32(d)(1)(ii) consistent with the statutory exception under amended TILA section 129(e). Accordingly, proposed § 1026.32(d)(1)(ii) provides an exception to the balloon payment restrictions under § 1026.32(d)(1)(i) if the payment schedule is adjusted to the seasonal or irregular income of the consumer.
The Bureau is proposing to exercise its authority pursuant to TILA section 129(p)(1) to provide an exception to the balloon payment restrictions for HELOCs with a repayment period. The Bureau understands that HELOC plans may have a draw period, or borrowing period, during which a consumer may obtain funds and a repayment period during which no further draws may be taken and the consumer is required to pay the balance on the account. Depending on the payment terms applicable to the draw period and the repayment period, an increase in scheduled payments that occurs as a result of the transition to the repayment period could be considered a balloon payment under a literal reading of TILA section 129(e). In most cases, the balloon payment restrictions would generally require that the payment schedule during the draw period be fully amortizing in order to avoid a balloon payment. However, the Bureau understands that some HELOC plans offer flexible payment features during the draw period. For example, some HELOC plans offer a payment plan where a consumer would only be required to pay interest during the draw period or offer a fixed-rate or -term feature. Therefore, pursuant to TILA section 129(p)(1), the Bureau believes that it is appropriate to provide creditors and consumers with flexibility during the draw period of a high-cost HELOC plan and that the continued availability of certain product features would be beneficial to consumers.
Accordingly, the Bureau is proposing § 1026.32(d)(1)(iii) to provide that if the terms of an open-end transaction provide for any repayment period during which no further draws may be taken, the balloon payment limitations in § 1026.32(d)(1)(i) apply only to the payment features within the repayment period. Proposed § 1026.32(d)(1)(iii) also provides that if the terms of an open-end transaction do not provide for any repayment period, the balloon payment limitations apply to the draw period. Proposed comment 32(d)(1)(i)-2 clarifies that if the terms of a high-cost HELOC plan do not provide for any repayment period, then the repayment schedule must fully amortize any outstanding principal balance in the draw period through regular periodic payments. However, the limitation on balloon payments in § 1026.32(d)(1)(i) does not preclude increases in regular periodic payments that result solely
Under the Bureau's proposal, a creditor would have to fully amortize the outstanding balance during the draw period if there is no repayment period in order to satisfy the requirements of proposed § 1026.32(d)(1)(i). The Bureau believes that this restriction on a high-cost HELOC plan may curtail the flexibility or availability of products without a fully-amortizing repayment period. For example, a creditor may no longer be able to offer flexible payment features for a plan. The Bureau solicits comment on this aspect of the proposal.
As discussed in the section-by-section analysis to proposed § 1026.32(b)(8), above, TILA currently permits prepayment penalties for high-cost mortgages in certain circumstances. In particular, under section TILA 129(c)(2), which is implemented in existing § 1026.32(d)(7), a high-cost mortgage may provide for a prepayment penalty so long as the penalty otherwise is permitted by law and, under the terms of the loan, the penalty does not apply: (1) To a prepayment made more than 24 months after consummation, (2) if the source of the prepayment is a refinancing of the current mortgage by the creditor or an affiliate of the creditor, (3) if the consumer's debt-to-income ratio exceeds fifty percent, or (4) if the amount of the periodic payment of principal or interest (or both) can change during the first four years after consummation of the loan.
Section 1432(a) of the Dodd-Frank Act repealed TILA section 129(c)(2). Thus, prepayment penalties are no longer permitted for high-cost mortgages. The proposal implements this change consistent with the statute by removing and reserving existing § 1026.32(d)(7) and comment 32(d)(7). The proposal also amends existing § 1026.32(d)(6) to clarify that prepayment penalties are a prohibited term for high-cost mortgages. As already discussed, the proposal retains in proposed § 1026.32(b)(8)(i) and proposed comment 32(b)(8)-1.iv the definition of prepayment penalty contained in existing § 1026.32(d)(6) and comment 32(d)(6)-1.
The Bureau is proposing a new § 1026.32(d)(8) to implement the prohibition in new section 129(l) of TILA added by section 1433(a) of the Dodd-Frank Act. New section 129(l) of TILA prohibits a high-cost mortgage from containing a provision which permits the creditor to accelerate the loan debt, except when repayment has been accelerated: (1) In response to a default in payment; (2) “pursuant to a due-on-sale provision”; or (3) “pursuant to a material violation of some other provision of the loan document unrelated to payment schedule.”
Proposed § 1026.32(d)(8) replaces current § 1026.32(d)(8) which similarly prohibited due-on-demand clauses for high-cost mortgages except in cases of fraud or material misrepresentation in connection with the loan, a consumer's failure to meet the repayment terms of the loan agreement for any outstanding balance, or a consumer's action or inaction that adversely affects the creditor's security for the loan or any right of the creditor in such security.
Proposed § 1026.32(d)(8) prohibits an acceleration feature in the loan or open-end credit agreement for a high-cost mortgage unless there is a default in payment under the agreement; the acceleration is pursuant to a due-on-sale clause; or there is a material violation of a provision of the agreement unrelated to the payment schedule. Proposed comments 32(d)(8)(i) and (iii), are similar to the commentary for current § 1026.32(d)(8) and provide examples of when acceleration under proposed § 1026.32(d)(8) is permitted. For example, proposed comment 32(d)(8)(i) makes clear that a creditor can accelerate the debt for a default in payment only if the consumer actually fails to make payments that result in a default under the agreement, and not where the consumer fails to make payments in error, such as sending the payment to the wrong office of the creditor. Proposed comment 32(d)(8)(iii) provides examples where the creditor may accelerate the debt based on a material violation, by the consumer, of some other provision of the agreement unrelated to the payment schedule, for example where: (1) The consumer's action or inaction adversely affects the creditor's security for the loan or open-end credit plan, or any right of the creditor in the security; or (2) the consumer violates the agreement through fraud or material misrepresentation in connection with the loan or open-end credit plan. The Bureau seeks comment from the public on possible additional examples where a consumer's material violation of the loan or open-end credit agreement, unrelated to the payment schedule, may warrant acceleration of the debt, and examples of when a consumer's action or inaction does not warrant acceleration.
The Bureau generally proposes clarifying revisions in proposed § 1026.34(a)(1) through (3) and comment 34(a)(3)-2 for consistency and clarity.
TILA section 129(h) generally prohibits a creditor from engaging in a pattern or practice of extending credit to consumers under high-cost mortgages based on the consumers' collateral without regard to the consumers' repayment ability, including the consumers' current and expected income, current obligations, and employment. TILA section 129(h) is implemented in current § 1026.34(a)(4).
The Dodd-Frank Act did not amend TILA section 129(h); however, sections 1411, 1412, and 1414 of Dodd-Frank, among other things, established new ability-to-repay requirements for any residential mortgage loan under new TILA section 129C. Specifically, TILA section 129C expands coverage of the ability-to-repay requirements to any consumer credit transaction secured by a dwelling, except an open-end credit plan, timeshare plan, reverse mortgage, or temporary loan. Residential mortgage loans that are high-cost mortgages, as defined in TILA section 103(bb), will be subject to the ability-to-repay requirements pursuant to TILA section 129C and the Bureau's forthcoming implementing regulations. Therefore, the existing requirements under § 1026.34(a)(4) will no longer be necessary for closed-end mortgage loans. For consistency with TILA section 129C, proposed § 1026.34(a)(4) requires that, in connection with a closed-end high-cost mortgage, a creditor must comply with the repayment ability requirements to be set forth in § 1026.43. The Bureau, however, solicits comment on this aspect of the proposal.
Because open-end credit plans are excluded from coverage of TILA section 129C, the existing ability-to-repay requirements of TILA section 129(h) would still apply to open-end credit plans that are high-cost mortgages. To facilitate compliance, the Bureau proposes to implement TILA section 129(h) as it applies to open-end credit plans in proposed § 1026.34(a)(4) by amending the existing mortgage repayment ability requirements in current § 1026.34(a)(4) to apply specifically to high-cost open-end credit
The Board concluded that this regulatory structure was warranted based on the comments the Board received and additional information. Specifically, the Board exercised its authority under TILA section 129(l)(2) (renumbered as TILA section 129(p)(2) by the Dodd-Frank Act) to revise HOEPA's restrictions on HOEPA loans based on a conclusion that the revisions were necessary to prevent unfair and deceptive acts or practices in connection with mortgage loans.
For substantially the same reasons detailed in the 2008 Higher-Priced Mortgage Rule, the Bureau believes that it is necessary and proper to use its authority under TILA section 129(p)(2), as amended, to retain the existing § 1026.34(a)(4) repayment ability requirements with respect to individual open-end credit plans that are high-cost mortgages, with a presumption of compliance as specified in the regulation, rather than merely prohibiting a “pattern or practice” of engaging in such transactions without regard for consumers' ability to repay the loans. The Bureau believes that the concerns discussed in the 2008 Higher-Priced Mortgage Rule, such as preventing unfair practices, providing remedies for individual borrowers, and providing more certainty to creditors, are equally applicable to open-end transactions that are high-cost mortgages. Furthermore, in light of the Board's prior determination, the Bureau believes it would not be in creditors' and borrowers' interest if the proposal inserted the “pattern or practice” language or removed the presumption of compliance in existing § 1026.34(a)(4). Therefore, the Bureau believes that applying the existing repayment ability requirement in current § 1026.34(a)(4) to open-end high-cost mortgages is necessary to prevent unfair or deceptive acts or practices in connection with mortgage loans.
Accordingly, the Bureau proposes to revise § 1026.34(a)(4) to provide that in connection with an open-end credit plan subject to § 1026.32, a creditor shall not open a plan for a consumer where credit is or will be extended based on the value of the consumer's collateral without regard to the consumer's repayment ability as of account opening, including the consumer's current and reasonably expected income, employment, assets other than the collateral, current obligations, and mortgage-related obligations. In addition, the Bureau generally proposes additional clarifying revisions in proposed § 1026.32(a)(4) and its associated commentary for consistency, clarity, or organizational purposes. The Bureau discusses specific proposed revisions below.
The Bureau proposes to revise current § 1026.34(a)(4)(iii) to clarify the criteria that a creditor must satisfy in order to obtain a presumption of compliance with the repayment ability requirements for high-cost mortgages that are open-end credit plans. In particular, current § 1026.34(a)(4)(iii)(B) requires that a creditor determine the consumer's repayment ability using the largest payment of principal and interest scheduled in the first seven years following consummation and taking into account current obligations and mortgage-related obligations. The Bureau believes that it is appropriate to determine the consumer's repayment ability based on the largest periodic payment amount a consumer would be required to pay under the payment schedule. However, applying this requirement to open-end credit plans requires additional assumptions because a creditor may not know certain factors required to determine the largest required minimum periodic payment, such as the amount a consumer will borrow and the applicable annual percentage rate. Accordingly, the Bureau proposes revised § 1026.34(a)(4)(iii)(B) to require a creditor to determine the consumer's repayment ability taking into account current obligations and mortgage-related obligations as defined in § 1026.34(a)(4)(i), and using the largest required minimum periodic payment. Furthermore, proposed § 1026.34(a)(4)(iii)(B) requires a creditor to determine the largest required minimum periodic payment based on the following assumptions: (1) The consumer borrows the full credit line at account opening with no additional extensions of credit; (2) the consumer makes only required minimum periodic payments during the draw period and any repayment period; and (3) the maximum annual percentage rate that may apply under the payment plan, as required by § 1026.30, applies to the plan at account opening and will apply during the draw period and any repayment period.
The proposal generally incorporates guidance in current comment 34(a)(4), with revisions for clarity and consistency. In addition, the proposal provides revisions for clarification, as discussed in detail below.
Proposed comment 34(a)(4)-1 clarifies that the repayment ability requirement under § 1026.34(a)(4) applies to open-end credit plans subject to § 1026.32; however, the repayment ability provisions of § 1026.43 apply to closed-end credit transactions subject to § 1026.32. Proposed comment 34(a)(4)-3 clarifies the current commentary to conform with proposed revisions and removes the current example. Proposed comment 34(a)(4)(iii)(B)-1 removes the examples in current comment 34(a)(4)(iii)(B) as unnecessary or inapplicable.
Section 1433(e) of the Dodd-Frank Act added new TILA section 129(u), which creates a counseling requirement for high-cost mortgages. Prior to extending a high-cost mortgage, TILA section 129(u)(1) requires that a creditor receive certification that a consumer has obtained counseling on the advisability of the mortgage from a HUD-approved counselor, or at the discretion of HUD's
HUD's housing counseling program is authorized by section 106 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701w and 1701x) and the regulations for the program are found in 24 CFR part 214. This program provides counseling to consumers on a broad array of topics, including seeking, financing, maintaining, renting, and owning a home. According to HUD, the purpose of the program is to provide a broad range of housing counseling services to homeowners and tenants to assist them in improving their housing conditions and in meeting the responsibilities of tenancy or homeownership. Counselors can also help borrowers evaluate whether interest rates may be unreasonably high or repayment terms unaffordable, and thus may help reduce the risk of defaults and foreclosures.
HUD historically has implemented its housing counseling program by approving nonprofit agencies and monitoring and funding government agencies that provide counseling services. HUD has required counseling agencies to meet various program requirements and comply with program policies and regulations to participate in HUD's housing counseling program.
Pre-loan housing counseling is available generally to prospective borrowers planning to purchase or refinance a home, but Federal and State laws specifically require that it be provided prior to origination of certain types of loans. For example, Federal law requires homeowners to receive counseling before obtaining a reverse mortgage insured by the Federal Housing Administration (FHA), known as a Home Equity Conversion Mortgage (HECM).
The Bureau is proposing to implement the counseling requirement for high-cost mortgages contained in new TILA section 129(u) in proposed § 1026.34(a)(5). Specifically, proposed § 1026.34(a)(5)(i) requires certification of counseling, proposed § 1026.34(a)(5)(ii) addresses the timing of counseling, and proposed § 1026(a)(5)(iv) sets forth requirements for the content of certification. The Bureau's proposal also sets forth several provisions concerning potential conflicts of interest. Proposed § 1026(a)(5)(iii) prohibits the affiliation of the counselor with the creditor, proposed § 1026(a)(5)(v) addresses the payment of counseling fees, and proposed § 1026(a)(5)(vi) prohibits a creditor from steering a consumer to a particular counselor or counseling organization. Finally, proposed § 1026(a)(5)(vii) requires creditors to provide a list of counselors to consumers for whom counseling is required.
The Bureau proposes to implement the requirement of new TILA section 129(u)(1) for certification of counseling in proposed § 1026.34(a)(5)(i). Specifically, proposed § 1026.34(a)(5)(i) provides that a creditor shall not extend a high-cost mortgage unless the creditor receives written certification that the consumer has obtained counseling on the advisability of the mortgage from a HUD-approved counselor, or a State housing finance authority, if permitted by HUD. The Bureau is proposing commentary related to proposed § 1026.34(a)(5)(i) to provide creditors additional compliance guidance.
Proposed comment 34(a)(5)-1 clarifies that for the purposes of this section, a State housing finance authority has the same meaning as a “State housing finance agency” provided in 24 CFR 214.3 of HUD's regulations implementing the housing counseling program. The Bureau is aware that similar definitions of “State housing finance authority” are referenced in new section 128 of TILA and in section 1448 of the Dodd-Frank Act. The Bureau does not believe that the minor differences among these three definitions are substantive, but in order to provide clarity, the Bureau is proposing to use the definition contained in 24 CFR 214.3 because it specifically addresses the ability of State housing finance authorities to provide or fund counseling, either directly or through an affiliate. However, the Bureau requests comment on whether either of the other definitions of a State housing finance authority would be more appropriate in this context.
The Bureau understands that other than for its HECM counseling program,
Proposed comment 34(a)(5)(i)-2 addresses when a creditor may begin to process an application that will result in the extension of a high-cost mortgage. The proposed comment states that prior to receiving certification of counseling, a creditor may not extend a high-cost mortgage, but may engage in other activities, such as processing an application that will result in the extension of a high-cost mortgage (by, for example, ordering an appraisal or title search). The Bureau notes that nothing in the statutory requirement restricts a creditor from processing an application that will result in the extension of a high-cost mortgage prior to obtaining certification of counseling. Moreover, the Bureau believes this interpretation is consistent with the HOEPA counseling requirements as a whole.
The Bureau recognizes that some creditors may wish to receive an indication that a consumer has obtained counseling prior to taking certain steps to continue processing an application. As discussed in the section-by-section analysis for proposed § 1026.34(a)(5)(ii), the Bureau proposes that counseling on the advisability of the loan may occur separately from and prior to the verification of the required disclosures and issuance of the certification of counseling. The Bureau notes that nothing in the proposed regulation or commentary precludes a creditor from requesting evidence from a counselor or consumer that the consumer has received counseling on the advisability of the mortgage before the consumer receives the required high-cost mortgage disclosure or the disclosures required under RESPA and before the counselor has issued certification of the counseling, if the creditor prefers to receive such information prior to taking certain steps to process the high-cost mortgage.
Proposed comment 34(a)(5)(i)-3 sets forth the methods whereby a certification form may be received by the creditor. The proposed comment clarifies that the written certification of counseling may be received by any method, such as mail, email, or facsimile, so long as the certification is in a retainable form. This would permit creditors to comply with the existing record retention requirements of § 1026.25.
Proposed § 1026.34(a)(5)(ii) provides that the required counseling must occur after the consumer receives either the good faith estimate required under RESPA, or the disclosures required under § 1026.40 for open-end credit. The Bureau believes that permitting counseling to occur as early as possible allows consumers more time to consider whether to proceed with a high-cost mortgage and to shop for different mortgage terms. However, the Bureau believes that it is also important that counseling on a high-cost mortgage address the specific loan terms being offered to a consumer. Therefore, requiring the receipt of either of these transaction-specific documents prior to the consumer's receipt of counseling on the advisability of the high-cost mortgage will best ensure that the counseling session can address the specific features of the high-cost mortgage, and that consumers will have an opportunity to ask questions about the loan terms offered. At the same time, given that these documents are provided to the consumer within a few days following application, the Bureau believes that the proposal permits counseling to occur early enough to give consumers sufficient time after counseling to consider whether to proceed with the high-cost mortgage transaction and to consider alternative options.
Despite the verification requirement, the Bureau does not believe that it would make sense to wait until receipt of all disclosures referenced in the statute to permit counseling to occur. Accordingly, nothing in proposed § 1026.34(a)(5)(ii) requires a counselor to wait for the receipt of either the § 1026.32(c) or RESPA disclosures that must be verified prior to certification to provide counseling. As noted above, the § 1026.32(c) high-cost mortgage disclosure is generally required to be provided to the consumer no later than three business days prior to
Proposed comment 34(a)(5)(ii)-1 clarifies that for open-end credit plans subject to § 1026.32, proposed § 1026.34(a)(5)(ii) permits receipt of either the good faith estimate required by RESPA or the disclosures required under § 1026.40 to allow counseling to occur, because 12 CFR 1024.7(h) permits the disclosures required by § 1026.40 to be provided in lieu of a good faith estimate, in the case of an open-end credit plan. The Bureau requests comment on whether it is appropriate to trigger the counseling period based on receipt of the disclosure under § 1026.40 for open-end credit plans.
Proposed comment 34(a)(5)(ii)-2 clarifies that counseling may occur after the consumer receives either an initial good faith estimate or a disclosure under § 1026.40, regardless of whether a revised disclosure is subsequently provided to the consumer.
Proposed § 1026.34(a)(5)(iii)(A) implements the general prohibition in new TILA section 129(u) that the counseling required for a high-cost mortgage shall not be provided by a counselor who is employed by or affiliated
Pursuant to the Bureau's authority under TILA 129(u)(3), proposed § 1026.34(a)(5)(iii)(B) creates an exception from this general prohibition for a State housing finance authority that both extends a high-cost mortgage and provides counseling to a consumer, either itself or through an affiliate, for the same high-cost mortgage transaction. The Bureau understands that State housing finance authorities may make mortgage funds directly available to consumers for purposes such as emergency home repairs through programs for which counseling is required, and that such loans could be classified as high-cost mortgages based on their fees. At the same time, State housing finance authorities may provide direct counseling services or distribute housing counseling funds to affiliated counseling agencies.
Proposed § 1026.34(a)(5)(iv) sets forth requirements for the certification form that is provided to the creditor. Specifically, proposed § 1026.34(a)(5)(iv) provides that the certification form must include the name(s) of the consumer(s) who obtained counseling; the date(s) of counseling; the name and address of the counselor; a statement that the consumer(s) received counseling on the advisability of the high-cost mortgage based on the terms provided in either the good faith estimate or the disclosures required by § 1026.40; and a statement that the counselor has verified that the consumer(s) received the § 1026.32(c) disclosures or the disclosures required by RESPA with respect to the transaction.
In new comment 34(a)(5)(iv)-1, the Bureau proposes guidance addressing the meaning of the statement that a consumer has received counseling on the advisability of the high-cost mortgage. Specifically, the comment provides that a statement that a consumer has received counseling on the advisability of a high-cost mortgage means that the consumer has received counseling about key terms of the mortgage transaction, as set out in the disclosures provided to the consumer pursuant to RESPA or § 1026.40; the consumer's budget, including the consumer's income, assets, financial obligations, and expenses; and the affordability of the loan for the consumer. The comment further provides some examples of such key terms of the mortgage transaction that are included in the good faith estimate or the disclosures required under § 1026.40 are provided to the consumer. The Bureau believes that requiring counseling on the high-cost mortgage to address terms of the specific high-cost mortgage transaction is consistent with both the language and purpose of the statute. The Bureau also believes that a requirement that counseling address the consumer's budget and the affordability of the loan is appropriate, since these are factors that are relevant to the advisability of a mortgage transaction for the consumer. Moreover, HUD already requires counselors to analyze the financial situation of their clients and establish a household budget for their clients when providing housing counseling.
New comment 34(a)(5)(iv)-1 further explains, however, that a statement that a consumer has received counseling on the advisability of the high-cost
Proposed comment 34(a)(5)(iv)-2 clarifies that a counselor's verification of either the § 1026.32(c) disclosures or the disclosures required by RESPA means that a counselor has confirmed, orally, in writing, or by some other means, receipt of such disclosures with the consumer. The Bureau notes that a counselor's verification of receipt of the applicable disclosures would not indicate that the applicable disclosures provided to the consumer with respect to the transaction were complete, accurate, or properly provided by the creditor.
The Bureau notes that HUD generally permits housing counselors to charge reasonable fees to consumers for counseling services, if the fees do not create a financial hardship for the consumer.
The Bureau believes that counselor impartiality is essential to ensuring that counseling affords meaningful consumer protection. Without counselor impartiality, the counseling a consumer receives on the advisability of a high-cost mortgage could be of limited value. However, the Bureau is also aware of concerns that housing counseling resources are limited, and that funding for counseling may not be adequate.
Proposed § 1026.34(a)(5)(v) addresses the funding of counseling fees by permitting a creditor to pay the fees of a counselor or counseling organization for high-cost mortgage counseling. However, to address potential conflicts of interest, the Bureau is also proposing that a creditor may not condition the payment of these fees on the consummation of the high-cost mortgage. Moreover, the Bureau is proposing that if the consumer withdraws the application that would result in the extension of a high-cost mortgage after receiving counseling, a creditor may not condition payment of counseling fees on the receipt of certification from the counselor required by proposed § 1026.34(a)(5)(i). If a counseling agency's collection of fees were contingent upon the consummation of the mortgage, or receipt of a certification, a counselor might have an incentive to counsel a consumer to accept a loan that is not in the consumer's best interest. The Bureau recognizes, however, that a creditor may wish to confirm that a counselor has provided services to a consumer, prior to paying a counseling fee. Accordingly, proposed § 1026.34(a)(5)(v) also provides that a creditor may otherwise confirm that a counselor has provided counseling to a consumer prior to paying counseling fees. The Bureau believes that proposed § 1026.34(a)(5)(v) will help preserve the availability of counseling for high-cost mortgages, and at the same time help ensure counselor independence and prevent conflicts of interest that may otherwise arise from creditor funding of counseling.
Proposed comment 34(a)(5)(v)-1 addresses the financing of counseling fees. As noted above, the Bureau intends to preserve the availability of counseling for high-cost mortgages. The proposed comment clarifies that proposed § 1026.34(a)(5)(v) does not prohibit a creditor from financing the counseling fee as part of the mortgage transaction, provided that the fee is a bona fide third party charge as defined by proposed § 1026.32(b)(5)(i). The Bureau believes that the proposal would ensure that several options are available for the payment of any counseling fees, such as a consumer paying the fee directly to the counseling agency, the creditor paying the fee to the counseling agency, or the creditor financing the counseling fee for the consumer.
The Bureau requests comment on whether to adopt additional or alternative restrictions on the compensation of counselors or counseling organizations for high-cost mortgage counseling services.
Proposed § 1026.34(a)(5)(vi) provides that a creditor that extends a high-cost mortgage shall not steer or otherwise direct a consumer to choose a particular counselor or counseling organization for the required counseling. The proposal is intended to help preserve counselor independence and prevent conflicts of interest that may arise when creditors refer consumers to particular counselors or counseling organizations. The Bureau notes that under the HECM program, lenders providing HECMs are prohibited from steering consumers to any particular counselor or counseling agency.
The Bureau is similarly proposing to prohibit a creditor that extends high-cost mortgages from steering or otherwise directing a consumer to choose a particular counselor or counseling organization for the required counseling on the high-cost mortgage. The Bureau believes that absent a steering prohibition, a creditor could direct the consumer to a counselor with whom the creditor has a tacit or express agreement to refer customers in exchange for favorable advice on the creditor's products in the counseling session.
Whether steering of this type has occurred is a case-by-case determination and may be difficult to discern. Accordingly, the Bureau is proposing comment 34(a)(5)(vi)-1 and 2, which provide an example of an action that
The Bureau solicits comment on the proposed approach to prevent steering of consumers to particular counselors or counseling organizations. The Bureau also requests comment on the usefulness of the illustrations in proposed comment 34(a)(5)(vi)-1 and 2, and on whether any additional examples of activities that would or would not constitute steering should be included.
In order to help consumers obtain information about resources for counseling, the Bureau is proposing to require creditors to provide consumers who will receive a high-cost mortgage with information about housing counseling resources. Proposed § 1026.34(a)(5)(vii)(A) requires a creditor to provide to a consumer for whom counseling is required, a notice containing the Web site addresses and telephone numbers of the Bureau and HUD for access to information about housing counseling, and a list of five counselors or counseling organizations approved by HUD to provide high-cost mortgage counseling. Proposed § 1026.34(a)(5)(vii)(A) also requires the notice to be provided to the consumer no later than the time when either the RESPA good faith estimate or the disclosure required by § 1026.40 in lieu of a good faith estimate, as applicable, must be provided.
As discussed in the section-by-section analysis of proposed § 1024.20 in Regulation X, the Bureau is proposing that creditors will be required to provide a list of homeownership counselors to mortgage loan applicants generally. In order to facilitate compliance with proposed § 1026.34(a)(5)(vii)(A), the Bureau is proposing a safe harbor in § 1026.34(a)(5)(vii)(B) that provides that a creditor will be deemed to have complied with the requirements of paragraph (a)(5)(vii)(A) if the creditor provides the list of homeownership counselors or organizations required by 12 CFR 1024.20 to a consumer for whom high-cost mortgage counseling is required.
Proposed comment 34(a)(5)(vii)-1 addresses the provision of the list of homeownership counselors in situations in which there may be multiple creditors or multiple consumers involved in a high-cost mortgage transaction by providing a cross-reference to §§ 1026.5(d) and 1026.17(d) and their related commentary, which provide guidance on the provision of disclosures for open- and closed-end credit in such situations.
The Bureau seeks comment on whether the requirement to provide Bureau, HUD, and counselor contact information is necessary or helpful. In addition, the Bureau solicits comment on whether requiring a list of five counseling organizations or counselors is appropriate. The Bureau is aware that several State laws that impose requirements on creditors to provide consumers lists of housing counselors specify a list of five as well.
The Bureau also requests comment on whether the safe harbor proposed in § 1026.24(a)(5)(vii)(B) is appropriate. The Bureau believes that most creditors will comply with the requirement to provide a list of counselors by fulfilling their obligations under 12 CFR 1024.20. However, the Bureau seeks comment on whether some creditors are likely to comply with this requirement independent of their obligations under RESPA, and if so, whether additional guidance would be helpful.
The Bureau is proposing a new § 1026.34(a)(6) to implement the prohibition on a creditor recommending a consumer default in connection with a high cost mortgage in new section 129(j) of TILA, which was added by section 1433(a) of the Dodd-Frank Act. Specifically, section 129(j) of TILA prohibits creditors from recommending or encouraging a consumer to default on an “existing loan or other debt prior to and in connection with the closing or planned closing of a high-cost mortgage that refinances all or any portion of such existing loan.” The Bureau, however, is proposing to use its authority under section 129(p)(2) of TILA to extend this prohibition in proposed § 1026.34(a)(6) to mortgage brokers, in addition to creditors. Section 129(p)(2) provides that the “Bureau by regulation * * * shall prohibit acts or practices in connection with—* * *(B) refinancing of mortgage loans the Bureau finds to be associated with abusive lending practices, or that are otherwise not in the interest of the borrower.”
Section 129(j) prohibits a practice—in connection with a refinancing—that is abusive or “otherwise not in the interest of the borrower” whereby a creditor advises a consumer to stop making payments on an existing loan with the creditor knowing that the consumer, by taking that advice, will default on that loan. Following the creditor's advice could therefore leave the consumer with no choice but to accept a high-cost mortgage originated by that creditor, with terms that are likely less favorable to the consumer, in order to refinance, and eliminate the default, on that existing loan. The Bureau believes that it is appropriate to extend the same prohibition against such creditor actions to mortgage brokers who often have significant interaction with consumers with regard to the refinancing of mortgage loans and could have similar incentives to encourage defaults that are not in the interest of the consumer. As stated by the Board in its final rule on higher-priced mortgage loans, 73 FR 44522, 44529 (July 30, 2008), “[t]he authority granted to the Board under TILA [section 129(p)(2)] is broad * * *. [W]hile HOEPA's statutory restrictions apply only to creditors and only to loan terms or lending practices, [section 129(p)(2)] is not limited to creditors and only to loan terms or lending practices.” Proposed § 1026.34(a)(6) therefore prohibits this practice for both creditors and mortgage brokers.
Proposed comment 34(a)(6) clarifies that whether a creditor or mortgage broker “recommends or encourages” a consumer to default on an existing loan depends on the relevant facts and circumstances, and provides examples. The Bureau solicits comment on the proposed examples and on additional possible examples where a creditor or mortgage broker may or may not be recommending or encouraging a consumer's default.
The Bureau is proposing a new § 1026.34(a)(7) to implement the prohibition on modification and deferral fees for high-cost mortgages in new section 129(s) of TILA, as added by section 1433(b) of the Dodd-Frank Act. Specifically, section 129(s) of TILA prohibits a “creditor, successor in interest, assignee, or any agent” of these parties from charging a consumer “any fee to modify, renew, extend, or amend a high-cost mortgage, or to defer any payment due under the terms of such mortgage.” As proposed, § 1026.34(a)(7) closely follows the statutory language in its implementation of section 129(s).
The Bureau seeks comment on the applicability of the prohibition to a refinancing of a high-cost mortgage, including where the refinancing would place the consumer in a non-high-cost mortgage.
In order to ensure that the Bureau's final rule, within the scope of the Bureau's authorities, effectively protects and benefits consumers, the Bureau also seeks comment, in general, on the specific circumstances, including examples, under which the prohibition on modification and deferral fees is particularly needed to protect consumers. The Bureau further seeks information on the implications of the Bureau's proposal on practices for open-end credit, and specifically on the extent to which fees are charged for a consumer's renewal or extension of the draw period under such open-end credit plans.
Section 1433(a) of the Dodd-Frank Act added to TILA a new section 129(k) establishing limitations on late fees on high-cost mortgages. The proposal implements these limitations, with minor modifications for clarity, in proposed § 1026.34(a)(8).
New TILA section 129(k)(1) generally provides that any late payment charge in connection with a high-cost mortgage must be specifically permitted by the terms of the loan contract or open-end credit agreement and must not exceed 4 percent of the “amount of the payment past due.” No such late payment charge may be imposed more than once with respect to a single late payment, or prior to the expiration of certain statutorily prescribed grace periods (
New TILA section 129(k)(1) does not define the phrase “amount of the payment past due.” Proposed comment 34(a)(8)(i)-1 explains that, for purposes of proposed § 1026.34(a)(8)(i), the “payment past due” in an open-end credit plan is the required minimum periodic payment, as provided under the terms of the plan. This comment is intended to clarify that, for open-end credit plans, where monthly payment amounts can vary depending on the consumer's use of the credit line, the “payment past due” is the required minimum periodic payment that was due immediately prior to the assessment of the late payment fee. The Bureau seeks comment on the appropriateness of this definition. The Bureau also seeks comment on whether additional guidance is needed concerning the meaning of the phrase “amount of the payment past due” in the context either of closed-end mortgages or in the case of partial mortgage payments.
New TILA section 129(k)(2) prohibits the imposition of a late charge in connection with a high-cost mortgage payment, when the only delinquency is attributable to late charges assessed on an earlier payment, and the payment is otherwise a full payment for the applicable period and is paid by its due date or within any applicable grace period. The Bureau proposes to implement this prohibition on late-fee pyramiding consistent with statutory language in § 1026.34(a)(8)(iii). The Bureau notes that proposed § 1026.34(a)(8)(iii) is consistent with § 1026.36(c)(1)(ii), which similarly prohibits late-fee pyramiding by servicers in connection with a consumer credit transaction secured by a consumer's principal dwelling.
Proposed comment 34(a)(8)(iii)-1 illustrates the rule for a high-cost mortgage with regular periodic payments of $500 due by the 1st of each month (or before the expiration of a 15-day grace period), where a consumer makes a $500 payment on August 25 and another $500 payment on September 1. Under proposed § 1026.34(h)(2), it is impermissible to allocate any portion of the payment made on September 1 to cover a $10 late charge assessed on the payment made on August 25, such that the September 1 payment, which otherwise complies with the terms of the loan contract, becomes delinquent. The Bureau requests comment as to whether additional guidance is needed concerning the application of proposed § 1026.34(a)(8)(iii) to open-end credit plans.
New TILA section 129(k)(3) provides that, if a past due principal balance exists on a high-cost mortgage as a result of a consumer's failure to make one or more required payments, and if permitted by the terms of the loan contract or open-end credit agreement permit, subsequent payments may be applied first to the past due principal balance (without deduction due to late fees or related fees) until the default is cured. The Bureau generally proposes to implement new TILA section 129(k)(3) consistent with statutory language in § 1026.34(a)(8)(iv), with modifications to clarify the application of the provision to open-end credit plans.
Proposed comment 34(a)(8)(iv)-1 illustrates the rule for a high-cost mortgage with regular periodic payments of $500 due by the 1st of each month (or before the expiration of a 15-day grace period), where a creditor imposes a $10 late fee after a consumer fails to make a timely payment on August 1 (or within the applicable grace period). If the consumer makes no payment until September 1, at which time the consumer makes a $500 payment, then under proposed § 1026.34(a)(8)(iv) (and if permitted by the terms of the loan contract), the creditor may apply that payment to satisfy the missed $500 payment that was due on August 1. The creditor may also impose a $10 late fee for the payment that was due on September 1 (assuming that the consumer makes no other payment prior to the expiration of
The Bureau is proposing a new § 1026.34(a)(9) to implement new section 129(t) of TILA, added by section 1433(d) of the Dodd-Frank Act, which: (1) specifically prohibits, with certain exceptions, a creditor or servicer from charging a fee for “informing or transmitting to any person the balance due to pay off the outstanding balance on a high-cost mortgage”; and (2) requires payoff balances for high-cost mortgages to be provided within five business days of a request by a consumer or a person authorized by the consumer to obtain such information.
Proposed § 1026.34(a)(9), in implementing section 129(t), prohibits a creditor or servicer from charging a fee to a consumer (or a person authorized by the consumer to receive such information) for providing a statement of an outstanding pay off balance due on a high-cost mortgage. It allows, however, as provided by section 129(t), the charging of a processing fee to cover the cost of providing a payoff statement by fax or courier, so long as such fees do not exceed an amount that is comparable to fees imposed for similar services provided in connection with a non-high-cost mortgage. The creditor or servicer is required to make the payoff statement available to a consumer by a method other than by fax or courier and without charge. Prior to charging a fax or courier processing fee, the creditor or servicer is required to disclose to the consumer (or a person authorized by the consumer to receive the consumer's payoff information) that payoff statements are otherwise available for free. The proposal allows a creditor or servicer who has provided payoff statements on a high-cost mortgage to a consumer without charge (other than a processing fee for faxes or courier services) for four times during a calendar year to charge a reasonable fee for providing payoff statements during the remainder of the calendar year. Finally, the proposal requires payoff statements to be provided by a creditor or servicer within five business days after receiving a request by a consumer for such a statement (or a person authorized by the consumer to obtain such information).
The Bureau seeks public comment on what additional guidance may be needed with regard to the fee and timing requirements for the provision of payoff statements for high-cost mortgages under proposed § 1026.34(a)(9).
Section 1433 of the Dodd-Frank Act added to TILA a new section 129(m) prohibiting the direct or indirect financing of (1) any points and fees; and (2) any prepayment penalty payable by the consumer in a refinancing transaction if the creditor or an affiliate of the creditor is the holder of the note being refinanced. The Bureau implements new TILA section 129(m) in proposed § 1026.34(a)(10). Proposed § 1026.34(a)(10) implements all aspects of the statute, except that the Bureau omits from the proposal statutory language concerning the financing of prepayment penalties payable by the consumer in a refinancing transaction. The Bureau notes that such penalties are subsumed in the definition of points and fees for § 1026.32 in proposed § 1026.32(b)(1)(vi) and (3)(iv). Thus, the prohibition against financing of “points and fees” necessarily captures the prohibition against financing of prepayment penalties payable in a refinancing transaction if the creditor or an affiliate of the creditor is the holder of the note being refinanced. Consistent with amended TILA section 103(bb)(4)(D) concerning the financing of credit insurance premiums (which new TILA section 129C(d) generally bans), proposed § 1026.34(a)(10) specifies that credit insurance premiums are not considered financed when they are calculated and paid in full on a monthly basis.
Proposed comment 34(a)(10)-1 clarifies that “points and fees” for proposed § 1026.34(a)(10) means those items that are required to be included in the calculation of points and fees under proposed § 1026.32(b)(1) through (5). Proposed comment 34(a)(10)-1 specifies that, for example, in connection with the extension of credit under a high-cost mortgage, a creditor may finance a fee charged in connection with the consumer's receipt of pre-loan counseling under § 1026.34(a)(5), because such a fee would be excluded from points and fees as a bona fide third-party charge pursuant to proposed § 1026.32(b)(5)(i).
Proposed comment 34(a)(10)-2 provides examples of the prohibition on financing of points and fees. Proposed comment 34(a)(10)-2 explains that a creditor directly or indirectly finances points and fees in connection with a high-cost mortgage if, for example, such points or fees are added to the loan balance or financed through a separate note, if the note is payable to the creditor or to an affiliate of the creditor. In the case of an open-end credit plan, a creditor also finances points and fees if the creditor advances funds from the credit line to cover the fees.
The Bureau requests comment on its proposed implementation of new TILA section 129(m). In particular, the Bureau requests comment on whether § 1026.34(a)(10) should prohibit the financing of charges that are not included in the calculation of points and fees, such as bona-fide third party charges (including certain amounts of private mortgage insurance premiums).
The Bureau is proposing a new § 1026.34(b) to implement the prohibition on structuring a loan transaction “for the purpose and with the intent” to evade the requirements for high-cost mortgages in new section 129(r) of TILA, which was added by section 1433(b) of the Dodd-Frank Act. Section 129(r) of TILA specifically prohibits a creditor from taking “any action in connection with a high-cost mortgage” to: (1) “structure a loan as an open-end credit plan or another form of loan for the purpose and with the intent of evading the provisions of this title” which include the high-cost mortgage requirements; or (2) divide a loan into separate parts “for the purpose and with the intent” to evade the same provisions.
Prior to the Dodd-Frank Act, open-end credit plans were not within the
New proposed comment 34(b)-1 provides examples of violations of proposed § 1026.34(b): (1) a loan that has been divided into two separate loans, thereby dividing the points and fees for each loan so that the HOEPA thresholds are not met, with the specific intent to evade the requirements of HOEPA; and (2) the structuring of a high-cost mortgage as an open-end home-equity line of credit that is in fact a closed-end home-equity loan in order to evade the requirement to include loan originator compensation in points and fees for closed-end mortgages under proposed § 1026.32(b)(1).
The proposal re-numbers existing comment 34(b)-1 as comment 34(b)-2 for organizational purposes. Notwithstanding the Dodd-Frank Act's expansion of coverage under HOEPA to include open-end credit plans, the Bureau believes that the guidance set forth in proposed comment 34(b)-2 remains useful for situations where it appears that a closed-end mortgage loan has been structured as an open-end credit plan to evade the closed-end HOEPA triggers. The Bureau proposes certain conforming amendments to proposed comment 34(b)-2, however, for consistency with the Bureau's proposed amendment to the definition of “total loan amount” for closed-end mortgage loans.
Section 1414 of the Dodd-Frank Act added new TILA section 129C(f)(2), which creates a counseling requirement for certain mortgages that may result in negative amortization. TILA section 129C(f)(2) requires creditors to obtain documentation from a first-time borrower sufficient to demonstrate that the borrower has obtained homeownership counseling from a HUD-certified organization or counselor prior to extending credit to the borrower in connection with a closed-end transaction secured by a dwelling (other than a reverse mortgage subject to § 1026.33 or a transaction secured by a consumer's interest in a timeshare plan described in 11 U.S.C. 101(53D)) that may result in negative amortization.
The Dodd-Frank Act added two general requirements that creditors must fulfill prior to extending credit to a consumer secured by a dwelling or residential real property that includes a dwelling, other than a reverse mortgage, that may result in negative amortization. The first, found in new TILA 129C(f)(1), requires creditors to provide consumers with a disclosure that, among other things, describes negative amortization and states that negative amortization increases the outstanding principal balance of the account and reduces a consumer's equity in the property. The Bureau is not implementing this requirement in the current proposal, but is planning to implement it as part of its 2012 TILA-RESPA proposal. The second provision, found in new TILA 129C(f)(2), requires creditors to obtain sufficient documentation demonstrating that a first-time borrower has received homeownership counseling from a HUD-certified organization or counselor, prior to extending credit in connection with a residential mortgage loan that may result in negative amortization.
Because of the similarity of the second provision to the counseling requirement for high-cost mortgages, the Bureau is including the implementation of this counseling provision as part of this proposal. General background regarding HUD's housing counseling program can be found in the section-by-section analysis addressing high-cost mortgage counseling above.
The Bureau is proposing to implement the counseling requirement for mortgages that may result in negative amortization created by new TILA section 129C(f)(1) in proposed § 1026.36(k). The Bureau is proposing to implement the general counseling requirement for first-time borrowers of mortgages that may result in negative amortization consistent with the statutory language. In addition to the general counseling requirement, pursuant to its authority under TILA section 105(a), the Bureau is proposing to include two additional provisions, the first to address steering by creditors to particular counselors or counseling organizations and the second to require the provision of a list of counselors to consumers. Both of these provisions are consistent with the requirements proposed for high-cost mortgage counseling discussed above. The Bureau notes, however, that it is not including certain additional provisions that the Bureau is proposing for high-cost mortgage counseling, due to differences in statutory language between the two counseling requirements. In addition to seeking comments on the proposed provisions below, the Bureau is also requesting comment on whether it would minimize compliance burdens if the Bureau conformed the counseling requirements for mortgages that may result in negative amortization with the counseling requirements for high-cost mortgages, despite differences in the statutory language.
The proposal implements the counseling requirement for negative amortization loans from TILA section 129C(f)(2) through § 1026.36(k)(1). Specifically, proposed § 1026.36(k)(1) provides that a creditor shall not extend credit to a first-time borrower in connection with a residential transaction secured by a dwelling (with exceptions for reverse mortgages and mortgages related to timeshare plans) that may result in negative amortization, unless the creditor receives documentation that the consumer has obtained counseling from a HUD-certified or approved counselor or counseling organization.
Proposed comment 36(k)(1)-1 provides that counseling organizations or counselors certified or approved by HUD to provide the counseling required by proposed § 1026.36(k)(1) include organizations and counselors that are certified or approved by HUD pursuant to section 106(e) of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x(e)) or 24 CFR part 214, unless HUD determines otherwise. This provision would allow currently approved counseling organizations to provide the counseling required by proposed § 1026.36(k)(1), but would be broad enough to account for future changes in HUD policy concerning eligibility to provide the required counseling.
The next proposed comment, comment 36(k)(1)-2, addresses the content of counseling to ensure that the counseling is useful and meaningful to the consumer with regard to the negative amortization feature of the loan. Specifically, comment 36(k)(1)-2 states that the homeownership counseling required pursuant to proposed § 1026.36(k)(1) must include information regarding the risks and consequences of negative amortization. The Bureau believes that a requirement that the counseling address the negative amortization feature of a loan is consistent the purpose of the statute. Absent any discussion of negative amortization, the particular concern reflected in the requirement that first-time borrowers of a mortgage that may result in negative amortization receive homeownership counseling would not necessarily be addressed.
To help facilitate creditor compliance with proposed § 1026.36(k)(1), proposed comment 36(k)(1)-3 provides examples of documentation that demonstrate that a consumer has received the required counseling, such as a certificate, letter, or email from a HUD-certified or approved organization or counselor indicating the consumer has received counseling.
Proposed comment 36(k)(1)-4 addresses when a creditor may begin to process the application for a mortgage that may result in negative amortization. As with high-cost mortgage counseling, the Bureau proposes that prior to receiving documentation of counseling, a creditor may not extend a mortgage to a consumer that may result in negative amortization, but may engage in other activities, such as processing an application for such a mortgage.
The Bureau solicits comment on the proposed general requirement and proposed comments, including whether the proposed guidance is adequate, or whether any additional guidance is needed.
Proposed § 1026(k)(2) provides guidance on the meanings of two key terms used in proposed § 1026.36(k)(1), “first-time borrower” and “negative amortization.” Specifically, proposed § 1026.36(k)(2)(i) provides that a first-time borrower means a consumer who has not previously received a closed-end mortgage loan or open-end credit plan secured by a dwelling. Proposed § 1026.36(k)(2)(ii) provides that negative amortization means a payment schedule with regular periodic payments that cause the principal balance to increase. The Bureau solicits comment on both of these definitions, and whether any changes to these definitions would be appropriate.
Consistent with its proposal to prohibit steering for high-cost mortgage counseling, the Bureau is proposing in § 1026.36(k)(3) to prohibit a creditor that extends mortgage credit that may result in negative amortization from steering or otherwise directing a consumer to choose a particular counselor or counseling organization for the counseling required by proposed § 1026.36(k). Proposed comment 36(k)(3)-1 references the proposed comments in 34(a)(5)(vi)-1 and -2, which provide an example of an action that constitutes steering, as well as an example of an action that does not constitute steering. The Bureau again solicits comment on whether any additional examples of activities that do or do not constitute steering should be included in the proposed comment.
Also consistent with its proposal for high-cost mortgage counseling, the Bureau is proposing in § 1026.36(k)(4)(i) to require a creditor to provide to a consumer for whom counseling is required under proposed § 1026.36(k), a notice containing the Web site addresses and phone numbers of the Bureau and HUD for access to information about homeownership counseling, and a list of five counselors or counseling organizations certified or approved by HUD to provide the required counseling. Proposed § 1026.36(k)(4)(i) also requires the notice to be provided to the consumer no later than the time that the RESPA good faith estimate must be provided. Consistent with the safe harbor proposed for the provision of a list of counselors for consumers required to receive high-cost mortgage counseling, proposed § 1026.36(k)(4)(ii) creates a safe harbor for compliance with the requirement to provide a list of counselors or counseling organizations if creditors provide the list of homeownership counselors or organizations required by 12 CFR 1024.20 to consumers for whom counseling is required under § 1026.36(k).
Proposed comment 36(k)(4)-1 addresses the provision of the list of homeownership counselors in situations in which there may be multiple creditors or multiple consumers involved in a mortgage transaction that may result in negative amortization, consistent with the comment proposed for high-cost mortgage counseling.
The Bureau seeks comment on whether the requirement to provide Bureau, HUD, and counselor contact information is appropriate, and whether it is appropriate to require the list to contain contact information for five counselors or counseling organizations. The Bureau also requests comment on whether the safe harbor for complying with the similar notice obligation under RESPA is appropriate. As with the requirement related to high-cost mortgages, the Bureau believes that most creditors will comply with this requirement to provide a list of counselors by fulfilling their obligations under proposed 12 CFR 1024.20. However, the Bureau again seeks comment on whether some creditors are likely to comply with this requirement independent of their obligations under RESPA, and if so, whether additional guidance would be helpful.
In developing the proposed rule, the Bureau has considered potential benefits, costs, and impacts, and has consulted or offered to consult with the prudential regulators, the Federal Trade Commission, and HUD, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.
As discussed above, HOEPA currently addresses potentially harmful practices in refinancing and closed-end home-equity mortgage loans. Loans that meet HOEPA's triggers are subject to restrictions on loan terms as well as to
In addition to the amendments related to high-cost mortgages, the Bureau is also proposing an amendment to Regulation Z and an amendment to Regulation X to implement amendments made by Sections 1414(a) and 1450 of the Dodd-Frank Act to TILA and to RESPA related to homeownership counseling for other types of mortgage loans, respectively.
The discussion below considers the potential benefits, costs, and impacts to consumers and covered persons of key provisions of the proposed rule, as well as certain alternatives proposed, which include:
1. Expanding the types of loans potentially covered by HOEPA to include purchase money mortgage loans and HELOCs;
2. Revising the existing HOEPA APR and points-and-fees triggers to implement Dodd-Frank Act requirements, as well as modifying the APR and points-and-fees calculations to determine whether a closed-end mortgage loan is a HOEPA loan;
3. Adding a prepayment penalty trigger;
4. Adding and revising several restrictions and requirements on loan terms and origination practices for HOEPA loans;
5. Implementing two separate homeownership counseling-related provisions mandated by the Dodd-Frank Act, namely, requiring lenders to provide a list of homeownership counselors or counseling organizations to applicants for loans covered by RESPA, and requiring creditors to obtain documentation that a first-time borrower of a negatively amortizing loan has received homeownership counseling.
The analysis also addresses certain alternative provisions in the proposed rule. As discussed in the section-by-section analysis, the Bureau requests comment on these proposed alternatives. The Bureau also seeks comment on the benefits, costs, and impacts of these alternatives for purposes of this analysis.
The analysis relies on data that the Bureau has obtained. The analysis also draws on evidence of the impact of State anti-predatory lending statutes that often place additional or tighter restrictions on mortgage loans than those required by HOEPA prior to the Dodd-Frank Act amendments. However, the Bureau notes that, in some instances, there are limited data that are publicly available with which to quantify the potential costs, benefits, and impacts of the proposed rule. For example, data on the terms and features of HELOCs are more limited and less available than data on closed-end mortgage loans, and the Bureau is not aware of any systematic and representative data on the prevalence of prepayment penalties or on points and fees on either closed-end mortgage loans or HELOCs. Moreover, some potential costs and benefits, such as the value of homeownership counseling, or reduced odds of an unanticipated fee or change in payments, are difficult to quantify. Therefore, the analysis generally provides a qualitative discussion of the benefits, costs, and impacts of the proposed rule.
The HOEPA amendments are self-effectuating, and the Dodd-Frank Act does not require the Bureau to adopt a regulation to implement these amendments. Thus, many costs and benefits of the proposed rule considered below would arise largely or entirely from the statute, not from the proposed rule. The proposed rule would provide substantial benefits compared to allowing the HOEPA amendments to take effect alone by clarifying parts of the statute that are ambiguous, such as how to determine whether a HELOC is a high-cost mortgage. Greater clarity on these issues should reduce the compliance burdens on covered persons by reducing costs for attorneys and compliance officers as well as potential costs of over-compliance and unnecessary litigation. Moreover, the costs that the regulation would impose beyond those imposed by the statute itself are likely to be minimal.
Section 1022 of the Dodd-Frank Act permits the Bureau to consider the benefits and costs of the rule solely compared to the state of the world in which the statute takes effect without an implementing regulation. To provide the public better information about the benefits and costs of the statute, however, the Bureau has nonetheless chosen to consider the benefits, costs, and impacts of the major provisions of the proposed rule against a pre-statutory baseline (
In general in this section, the term “creditor” is used to describe depository institutions, credit unions, and independent mortgage companies that extend mortgage loans, though in places the discussion distinguishes between these types of creditors. When appropriate, this section discusses covered persons other than creditors or lenders, such as mortgage brokers and servicers. For example, as required by the Dodd-Frank Act, the restrictions on loan modification or deferral fees and fees for payoff statements would apply to mortgage servicers. In addition, the Bureau is proposing to extend the prohibition on recommended default to mortgage brokers.
Expanding the types of loans potentially subject to HOEPA coverage to include purchase money mortgage loans and HELOCs would increase the number of loans potentially subject to HOEPA coverage and as a result, almost certainly, the number of closed-end mortgage loans and HELOCs classified as high-cost mortgages. Data collected under the Home Mortgage Disclosure Act (HMDA) offer a rough illustration of the scope of the expansion of loans potentially covered by HOEPA.
The Bureau expects, however, that only a small fraction of loans under the proposed rule would qualify as HOEPA loans and that few lenders would make a large number of HOEPA loans. The Bureau's analysis of loans reported in HMDA suggests that the share of all closed-end mortgage loans for lenders that report in HMDA might increase from roughly 0.04 percent under the current triggers to about 0.3 percent of loans under the revised triggers. Based on analysis of data from HMDA and Call Reports and statistical extrapolation to non-reporting entities, the Bureau estimates that the number of depository institutions that make any closed-end HOEPA loans would increase from about 6-7 percent of depository institutions to approximately 10-11 percent.
The Bureau believes that the benefits and costs of expanding the types of loans potentially subject to HOEPA coverage, and in turn the likely number of HOEPA loans, should be similar qualitatively to the benefits and costs of current HOEPA provisions.
These benefits may include improving applicants' and borrowers' understanding of the terms and features of a given high-cost mortgage and, in turn, facilitating their ability to shop for mortgages. The rule would also restrict or prohibit loan terms such as prepayment penalties and balloon
Improving borrowers' understanding of a given loan may increase borrowers' ability to shop, which could have additional benefits to consumers if, as a consequence, borrowers select a more favorable loan (which may be a loan that does not meet the HOEPA triggers) or if borrowers forgo taking out any mortgage, if none would likely be affordable. At least for some borrowers, obtaining information in the process of choosing a mortgage loan may be costly. These costs could include the time and effort of obtaining additional mortgage offers, trying to understand a large number of loan terms, and—particularly for an adjustable-rate loan—assessing the likelihood of various future contingencies.
A borrower who finds shopping for and understanding loan terms difficult or who needs to make a decision in a short timeframe, for example, may select a mortgage with less favorable loan terms than he or she could qualify for because the costs of shopping exceed the expected savings, reduced risk, or other benefits from another mortgage. The proposed rule would reduce the costs of understanding the loan terms. In doing so, the proposed rule would benefit not only applicants who opt, based on better information, not to take out a high-cost mortgage, but also high-cost mortgage borrowers, since these borrowers will have incurred lower costs in choosing a mortgage.
It appears that many consumers do not shop extensively when selecting a mortgage. Surveys of mortgage borrowers suggest that roughly 20-30 percent of borrowers contact one lender and a similar fraction consider only two lenders.
Some mortgage borrowers appear to have difficulty understanding or at least recalling details of their mortgage, particularly the terms and features of adjustable-rate mortgages.
These benefits to consumers arise from making information less costly, but the potential benefits to consumers may be even greater if at least some borrowers make systematic errors in processing information. For example, consumers may not accurately gauge the probability of uncertain events.
The proposed rule could increase the cost of credit or curtail access to credit for a small share of HELOC borrowers and purchase money borrowers because, as detailed below, creditors may be reluctant to make HOEPA loans and may no longer offer loans that they currently make but that would meet the new HOEPA triggers. Studies of State anti-predatory mortgage lending laws, however, indicate these impacts of extending HOEPA coverage may be limited, as the State laws typically have only modest effects on the volume of subprime lending overall and on interest rates for loans that meet the State-law triggers.
The arguably muted response of origination volume to passage of State anti-predatory lending laws appears to reflect, in part, the fact that the market substituted other products that did not trigger restrictions or requirements of the statute, for example, loans with lower initial promotional interest rates and longer promotional-rate periods.
87 Lei Ding, Roberto G. Quercia, Carolina K. Reid, and Alan M. White (2011), “State Anti-Predatory Lending Laws and Neighborhood Foreclosure Rates,”
The Bureau is unaware of data that would allow for strong inferences regarding the extent to which such substitution in creditors' mortgage product offerings leads to borrowers taking out more favorable loans. Studies of State anti-predatory mortgage lending statutes, however, suggest that stronger State statutes are associated with lower neighborhood-level mortgage default rates.
Expanding the types of loans potentially subject to HOEPA coverage to include purchase money mortgage loans and HELOCs would likely require creditors to generate and to provide HOEPA disclosures to a greater number of borrowers than today. It is difficult to predict the extent to which lenders may avoid making newly eligible loans under the proposed rule. However, the Bureau's estimation methodology in analyzing the paperwork burden associated with the proposed rule implies that on the order of 24,000 loans might qualify as high-cost mortgages or high-cost HELOCs. Nevertheless, the Bureau expects that the share of borrowers that receive a high-cost mortgage would remain a small fraction of all mortgage borrowers (by the Bureau's estimates, likely about 0.3 percent of all closed-end and open-end originations). Creditors would likely also incur costs to comply with the proposed rule that a creditor obtain certification that a HOEPA borrower has received homeownership counseling.
A small number of creditors may also lose a small fraction of revenue as a greater number of loans are subject to HOEPA. Based on outreach, the Bureau understands that some lenders have a negative perception of HOEPA loans. This perception coupled with the restrictions and liability provisions associated with HOEPA loans may reduce creditors' ability or willingness to make high-cost purchase money mortgage loans and HELOCs. Creditors may also be reluctant to make high-cost purchase money mortgage loans that they previously would have extended because of the general inability to sell HOEPA loans in the current market, primarily due to assignee liability.
If creditors were indeed unwilling to make the likely small fraction of loans that meet the revised HOEPA triggers and did not substitute other loan products, they would lose the full revenue from any loans that they choose to no longer originate. A second possibility is that creditors restrict high-cost mortgage lending in part by substituting alternative products that do not meet the HOEPA triggers. Even if all potential HOEPA loans were modified in this way so that the number of originations was unaffected, the alternative loans would presumably be less profitable (or at most equally profitable), since a creditor could have offered the same loan contract prior to the expansion of HOEPA. Thus, even when creditors substitute alternative loan products, creditors likely would incur some revenue loss.
The Bureau believes that expanding the types of loans potentially subject to HOEPA coverage to include purchase money mortgage loans and HELOCs could benefit covered persons that currently provide effective disclosures by leveling the playing field with competitors that fail to do so. It is possible that some creditors that currently originate purchase money mortgage loans or HELOCs that would be covered by expanded HOEPA do not currently provide applicants with clear information regarding the terms and features of those loans. By extending HOEPA to cover such transactions, borrowers will receive additional disclosures and homeownership counseling that may improve their understanding of the loan offer. This could allow creditors that currently provide effective disclosures to compete on more equal footing.
Despite expanding the types of loans potentially subject to HOEPA coverage, which likely would result in an increase in the number and share of loans that are classified as HOEPA loans, HOEPA loans are expected to continue to account for a small fraction of both closed-end mortgage loans and HELOCs. Thus, the proposed rule would be expected to have no direct impact on the vast majority of creditors, since, as noted above, at most about ten percent of creditors are predicted to make HOEPA loans under the proposed rule, and few creditors are expected to make significant numbers of HOEPA loans. Similarly, the proposed rule would not be expected to directly affect the vast majority of borrowers—those who do not apply for or obtain a high-cost mortgage. As noted above, the Bureau estimates that the share of all closed-end mortgage loans for lenders that report in HMDA might increase from roughly 0.04 percent under the current triggers to about 0.3 percent of loans under the revised triggers. The estimated proportion of purchase-money mortgage loans that would qualify as high-cost mortgages is a bit higher, 0.4 percent, but still a small fraction of all such loans.
The statute, and therefore the proposed rule, revise the APR and points-and-fees triggers, which would likely result in an increase in the number of high-cost mortgages. The Bureau estimates, for example, that these changes in the triggers would increase the fraction of refinance and home improvement loans that are high-cost mortgages made by lenders that reported in the 2010 HMDA data from about 0.06 percent of loans to 0.24 percent of loans. The Dodd-Frank Act also expanded the definition of points
In addition, as noted in the section-by-section analysis above, the Bureau is proposing in its 2012 TILA-RESPA Proposal a simpler, more inclusive definition of the finance charge. Because the APR and the calculation of points and fees both depend in part on the finance charge, the broader definition of finance charge would likely increase the number of closed-end mortgage loans that would meet the two triggers. The Bureau is seeking comment on whether to adopt modifications to approximately offset this increase, and has proposed two such measures specifically. One would use a transaction coverage rate (TCR) instead of the APR to determine whether a closed-end mortgage loan is a high-cost mortgage. The other would exclude the additional fees that would be captured by the broader definition of finance charge from being counted toward the points and fees trigger for high-cost mortgages.
As discussed in the Bureau's 2012 TILA-RESPA Proposal, in the section-by-section analysis above for proposed § 1026.32(a)(1)(i) and (b)(1)(i), and below in part VII, the Bureau does not currently have sufficient data to model the impact of the more expansive definition of finance charge on HOEPA and other affected regulatory regimes or the impact of potential modifications that the Bureau could make to the triggers to more closely approximate existing coverage levels.
The Dodd-Frank Act revisions to the triggers may benefit consumers by increasing the number of loans classified as high-cost mortgages. As a result, the benefits and costs to consumers discussed above in the context of expanding HOEPA coverage are likely similar, at least qualitatively, to the benefits and costs of revising the triggers to capture a greater share of loans. As a result of the revised triggers, these benefits and costs would apply to a larger set of loans, although as noted above, the Bureau believes that high-cost loans would likely remain a small fraction of all loans. These benefits could include a better understanding of the risks associated with the loan which, in turn, may reduce the likelihood that a borrower takes out a mortgage he or she cannot afford; better loan terms due to increased shopping and an absence of loan features whose associated risks may be difficult for borrowers to understand.
Nonetheless, the proposed rule could impose costs on a small number of borrowers by raising the cost of credit or curtailing access to credit if creditors choose not to make loans that meet the revised triggers. As discussed above, however, available evidence based on State anti-predatory lending statutes suggests that tighter restrictions and more expansive definitions of high-cost mortgages typically have only a limited impact on the cost of credit and on originations.
With regard to the Bureau's separate proposal to expand the definition of finance charge, that change would also be expected to increase the number of loans classified as high-cost mortgages, as discussed in the 2012 TILA-RESPA Proposal. The Bureau is seeking comment in this proposal on whether to adopt specific measures that would approximately offset the impact on HOEPA coverage levels of an expanded definition of finance charge. Were the Bureau to adopt the proposed changes, the additional benefits and costs to consumers from further increasing the number of loans classified as high-cost mortgages would not occur. In addition, because the TCR excludes fees to non-affiliated third-parties, the TCR might result in some loans not being classified as high-cost mortgages that would qualify under an APR threshold using the current definition of finance charge.
The benefits and costs to covered persons of revising the statutory HOEPA triggers would likely be expected to be similar, at least qualitatively, to those that would result from expanding the types of loans potentially subject to HOEPA coverage to purchase money mortgages and HELOCs. For example, creditors would likely incur costs associated with generating and providing HOEPA disclosures for additional loans that would be covered by the revised HOEPA triggers, as well as costs associated with obtaining certification that a HOEPA borrower has received homeownership counseling. As discussed above, a small number of creditors may also lose a very small fraction of revenue if they are reluctant to make high-cost mortgages and cannot offer alternatives that are as profitable as a HOEPA loan.
As discussed in connection with expanding the types of loans potentially subject to HOEPA coverage to include purchase money mortgages and HELOCs, revising the interest rate and points-and-fees triggers could benefit some covered persons by restricting practices of their competitors to obfuscate product costs. Some creditors may gain market share from competitors that do not currently provide complete
Again, as discussed in the 2012 TILA-RESPA Proposal, expanding the definition of finance charge would be expected to increase the number of loans classified as high-cost mortgages, with similar benefits and costs to covered persons as described above. The Bureau has proposed two modifications to approximately offset the impact of an expanded definition of finance charge. Were the Bureau to adopt the measures proposed in this rule, the benefits and costs of coverage under Federal regulatory regimes described above would likely not occur although there might still be effects on the coverage of various State mortgage laws and regulations. Using the TCR for the HOEPA APR test might also result in some loans not being classified as high-cost mortgages that would qualify under an APR threshold using the current definition of finance charge. The benefits and costs to providers of such loans would be the inverse of those described above; creditors would not incur the costs of compliance with the high-cost mortgage requirements or impact on revenue from offering alternative loans, or the potential benefits of restrictions on competitors that offer loans that would be excluded from HOEPA coverage using the TCR for the HOEPA APR test.
To adopt the proposed modifications, creditors might be required to update compliance systems to reflect changes to the finance charge calculation. These updates might involve one-time costs associated with software updates, legal expenses, and personnel training time. As discussed above, if the Bureau adopts the proposal, it expects to provide an implementation period that would coincide either with implementation of the disclosure modifications or with implementation of certain changes to coverage of HOEPA and other regulatory regimes that would be affected by the change in definition. Accordingly, the Bureau believes that software changes and other expenses would be incurred as part of the overall software and compliance system revisions required to comply with the other simultaneous changes, and therefore would not impose a substantial additional burden.
Using different metrics for purposes of disclosures and determining coverage of various regulatory regimes may also impose some ongoing complexity and compliance burden. As discussed above, the Bureau believes that any such effects with regard to transaction coverage rate would be mitigated by the fact that both TCR and APR would be easier to compute under the expanded definition of finance charge than the APR today using the current definition. In addition, the Bureau is seeking comment on whether use of the TCR or other trigger modifications should be optional, so that creditors could use the broader definition of finance charge to calculate APR and points and fees triggers if they would prefer.
The Bureau believes adoption of the proposed modifications would as a whole reduce the economic impacts on creditors of the more expansive definition of finance charge proposed in the 2012 TILA-RESPA Proposal.
The Dodd-Frank Act added a new HOEPA trigger for loans with a prepayment penalty. Under the Dodd-Frank Act, HOEPA protections would be triggered where the creditor may charge a prepayment penalty more than 36 months after consummation, or if the penalty is greater than 2 percent of the amount prepaid. High-cost mortgages, in turn, are prohibited from having prepayment penalties, so the prepayment penalty trigger effectively caps both the time period after consummation during which such a penalty may be charged and the amount of any such penalty.
The proposed rule would potentially benefit a small number of consumers by potentially making it easier to refinance a high-cost mortgage. Prepayment penalties can prevent consumers from refinancing in circumstances where it would be advantageous for the consumer to do so as would be true if, for example, interest rates fall or the borrowers' credit score improves. The prepayment penalty trigger coupled with the prohibition on prepayment penalties would remove this barrier to obtaining a more favorable loan.
The proposed rule may be particularly beneficial to borrowers that, in taking out a mortgage, under-estimate the likelihood that they will move or that more favorable terms might be available in the future so that refinancing would be advantageous. Likewise, eliminating prepayment penalties could benefit borrowers that select a loan based on terms that are immediately relevant or certain rather than costs and benefits of the loan terms that are uncertain or in the future.
Nevertheless, the proposed rules regarding prepayment penalties would potentially result in some borrowers taking out a mortgage that is less favorable than they would if the proposed rule were not implemented. For example, this would be true for a borrower who is unlikely to move or refinance and may be willing to accept a prepayment penalty in exchange for a lower interest rate if a lender offered mortgage products with such a trade-off.
At this time, the Bureau cannot quantify the extent to which lenders may restrict lending or increase fees or interest rates as a result of the proposed rule. To do so would require, among other information, comprehensive data on the terms and features—including details of any prepayment penalties—of mortgage contracts that creditors offer. The Bureau does not currently have such data. Similarly, the Bureau cannot quantify the share of borrowers or the costs to borrowers who may receive a less-favorable mortgage than if the proposed rule did not restrict prepayment penalties. Estimating these quantities would require not only data on the alternative mortgage contracts that borrowers might be offered but also information on how consumers value each of the alternative contracts.
The Bureau believes that the potential benefits and costs to consumers of the high-cost mortgage prepayment penalty trigger, however, could be muted by other Dodd-Frank Act provisions related to ability-to-repay requirements that separately restrict such penalties for closed-end mortgage loans that are not qualified mortgages.
The proposed rule could increase the risk and, in turn, the costs that the likely small number of creditors that would make high-cost mortgages would assume in making such a loan. Prepayment penalties are one tool that creditors can use to manage prepayment and interest rate risk and to increase the likelihood that creditors recoup the costs of making the loan. The proposed rule would limit creditors' ability to manage prepayment and interest rate risk in this way, although creditors might be expected to adjust the contracts that they offer to at least partially offset any associated revenue loss. The Bureau notes that the costs to creditors associated with this component of the proposed rule could be muted by the effect of the other provisions of the Dodd-Frank Act that limit prepayment penalties, as discussed above.
The proposed rule also tightens existing restrictions for high-cost mortgages, including on balloon payments, acceleration clauses, and loan structuring to evade HOEPA and, as discussed above, bans prepayment penalties for high-cost mortgages. Further, the proposed rule adds new restrictions including limiting fees for late payments and fees for transmission of payoff statements; prohibiting fees for loan modification, payment deferral, renewal, or extension; prohibiting financing of prepayment penalties in a refinancing or of points and fees; and prohibiting recommended default. Finally, the rule provides for an expansion of the existing ability-to-repay requirement to open-end credit plans and adds a requirement that a creditor receive certification that a borrower with a high-cost mortgage has received pre-loan homeownership counseling.
Taken together, the proposed rules' requirements and restrictions would potentially have a variety of benefits to the likely small number of borrowers with a high-cost mortgage. These potential benefits include reducing the likelihood that a borrower would face unexpected payment increases, increasing the likelihood a borrower can refinance, and improving a borrower's ability to obtain a mortgage that is affordable and otherwise meets their needs.
The restrictions on acceleration clauses, late fees, and fees for loan modification, payment deferral, renewal, or similar actions each reduce the likelihood of unanticipated payment increases. Steady, predictable payments may simplify consumers' budgeting and may particularly benefit borrowers with high-cost mortgages if, as might be expected, these borrowers tend to have fewer resources to draw upon to meet unanticipated payment increases. Although scheduled balloon payments may be more predictable than, say, a late fee, balloon payments may typically be much larger. The proposed rule's limits on balloon payments may reduce the likelihood that a borrower with insufficient financial assets to make the balloon payment feels pressure to refinance the loan, potentially at a higher interest rate or with new fees.
Several of the requirements and restrictions may help borrowers to select the mortgage that best suits their needs. First, the requirement that the creditor assess the repayment ability of an applicant for a high-cost HELOC may help to ensure that the HELOC is affordable for the borrower. Second, the provision that prohibits a creditor from recommending that a consumer default on an existing loan in connection with closing a high-cost mortgage that refinances the existing loan would make it less likely that, because of a pending default, a borrower is pressured or constrained to consummate a mortgage, particularly one whose terms had changed unfavorably after the initial application. Third, by prohibiting financing of points and fees or a prepayment penalty as part of a refinance, the proposed rule could improve borrowers' ability to assess the costs of a given mortgage. In particular, the costs of points and fees or of a prepayment penalty may be less salient to borrowers if they are financed, because the cost is spread out over many years. When points and fees are instead paid up front, the costs may be more transparent for some borrowers, and consequently the borrower may more readily recognize a relatively high fee. Fourth, pre-loan counseling would potentially improve applicants' mortgage decision-making by improving applicants' understanding of loan terms. This benefit is qualitatively similar to the benefits of the HOEPA disclosure. Moreover, counseling may benefit a borrower by, for example, improving the borrower's assessment of his or her ability to meet the scheduled loan payments and by making the borrower aware of other alternatives (such as purchasing a different home or a different mortgage product). Finally, some applicants may find information on loan terms and features to be more useful or effective when delivered in a counseling setting rather than in paper form. Counseling could also complement the HOEPA disclosure by providing applicants an opportunity to resolve questions regarding information on the disclosure itself. In addition, in weighing the feasibility or merits of a loan, applicants may focus on the loan features that are most easily understood, most immediately relevant, or most certain; homeownership counseling could mitigate any bias in an applicant's decision-making by focusing either on less understood or less immediate, but still important, provisions.
It is possible, however, that creditors would respond to the tighter restrictions on high-cost mortgages by increasing the cost of credit or even no longer extending loans to these borrowers. As noted above, however, to date the evidence suggests that restricting high-cost lending may have only modest effects on the cost of credit and on the supply of credit, at least as measured by mortgage originations. Further, the pre-loan counseling requirement could impose costs on borrowers. Not only might the borrower have to pay for counseling, but the need to obtain counseling could conceivably delay the closing process, and such delay may be costly for some borrowers.
Creditors that already assess a HELOC-borrower's ability to repay may benefit from the proposed rule's requirement that all creditors do so if creditors that currently do so gain market share as their competitors incur costs to meet this requirement. The requirement that a creditor receive certification that a borrower with a high-cost mortgage has received pre-loan homeownership counseling may benefit creditors by reducing the time that a creditor would need to spend to help a borrower select a mortgage or to answer a borrower's questions.
In light of the tighter restrictions and requirements on high-cost mortgages, lenders may be less willing to make HOEPA loans. If so, then some creditors' revenues may decline by a likely small proportion either because they do not extend any credit to a borrower to whom they would have previously made a high-cost loan, or because they extend an alternative loan that does not qualify as a high-cost loan but that results in lower revenue.
The Bureau seeks comment on the two proposed alternative definitions of balloon payments. Information provided by interested parties may inform the analysis of the impacts of this provision under the finalized rule.
In some instances the potential impacts of these restrictions may extend beyond creditors. The proposed rule would extend the prohibition on recommended default to brokers as well as creditors, for example. This prohibition is expected to have little impact on covered persons because the Bureau believes that few, if any, creditors or brokers have a business model premised on recommending default on a loan to be refinanced as a HOEPA loan. The limits on various fees, detailed above, apply to servicers as well as creditors. Both of these sets of covered persons could incur revenue losses or greater costs if such fees are important risk management tools.
The Bureau believes creditors would incur recordkeeping and data retention costs due to the proposed requirement that a creditor receive certification that a borrower received pre-loan counseling. Based on the estimation methodology for analyzing the paperwork burden associated with the proposed rule, the Bureau estimates that these costs to be roughly $600 in total for all creditors that make any high-cost mortgages. These costs may be small relative to the quantity of other information that must be retained and that, under the proposed 2012 TILA-RESPA rule, would generally be required to be retained in machine-readable format.
The proposed rule would include two additional provisions required by the Dodd-Frank Act related to homeownership counseling that apply to loans with negative amortization and loans covered by RESPA. First, the proposed rule would require lenders to provide a list of HUD-certified or -approved homeownership counselors or counseling organizations to applicants for all mortgages covered by RESPA, except where the lender has provided a list under HUD's HECM program. HECMs are currently subject to counseling and counselor-list requirements, so to avoid duplication and potential borrower confusion, the proposed rule's counselor-list requirement would not be applied to these mortgages.
The proposed rule would also require that both HOEPA borrowers as well as first-time borrowers of loans that may result in negative amortization similarly receive a counselor list. However, HOEPA loans and negative-amortization loans are a subset of loans covered by RESPA, and the proposed counselor-list requirement for these types of loans would be satisfied by complying with the RESPA requirement. Therefore, there are no additional costs and benefits from the counselor-list requirements for either HOEPA loans or negative-amortization loans for first-time borrowers.
With respect to first-time borrowers with a loan that could have negative amortization, the proposed rule would require that a creditor receive documentation that the borrower received homeownership counseling. The proposed rule would not specify any particular elements that must be included in the documentation.
The two non-HOEPA homeownership counseling provisions included in the proposed rule would generally have benefits to consumers that are similar in nature to those of requiring that creditors receive certification that a borrower with a high-cost mortgage has received homeownership counseling. In particular, as discussed above, homeownership counseling may improve borrowers' understanding of their mortgages, it may complement the information provided in disclosures, and it could counteract any tendency among borrowers to consider only loan features that are most easily understood, most immediately relevant, or most certain.
The proposed rule would not mandate counseling for potential borrowers of mortgages covered by RESPA, but requiring lenders to provide the list of homeownership counselors or counseling organizations may prompt some borrowers who were unaware of these resources (or of their geographic proximity) to seek homeownership counseling. This may especially be the case for borrowers who feel confused or overwhelmed by the information and disclosures provided by the lender.
In contrast, the proposed rule would require that a creditor receive documentation that a first-time borrower that has applied for a loan that could have negative amortization has received homeownership counseling. First-time borrowers may particularly benefit from homeownership counseling if they have greater difficulty, relative to other borrowers, in understanding or assessing loan terms and features because they do not have experience with obtaining or paying on a mortgage.
The Bureau believes that requiring applicants of loans covered by RESPA to receive a list of HUD-certified or -approved homeownership counselors or counseling organizations should not result in costs to consumers beyond those passed on by creditors. More specifically, the information contained on the list should be readily understandable, the time required of the borrower to receive the disclosure should be minimal, and borrowers may choose to not follow up on this information.
First-time borrowers with a loan that may have negative amortization will likely have to pay for the counseling, either upfront or by financing the fee. In addition, counseling may be costly, at least in terms of time, for borrowers who do not find it helpful. In addition, the counseling requirement may impose delays on loan closing, which could be costly, for example, for a borrower who is contractually obligated to close on a home by a certain date.
The Bureau believes that covered persons would incur costs from providing potential borrowers of loans covered by RESPA with a list of HUD-certified or approved homeownership counselors or counseling organizations but that these costs are likely less than one dollar per application. The Bureau expects that the list would be a single page and that it would be provided with other materials that the lender is required to provide. In addition, the Bureau expects to create a Web site portal to make it easy for lenders and consumers to obtain lists of homeownership counselors in their areas, and the Bureau solicits comments on alternative measures that the Bureau could take to minimize the compliance burden associated with producing and providing the counselor list.
The Bureau also believes that the costs of obtaining documentation that a first-time borrower with a negative-amortization loan has obtained counseling are likely small because such loans should be quite rare. Not only are loans with negative-amortization features uncommon, but also the provision would apply only to first-time
As discussed in the section-by-section analysis above, the proposed counseling requirements for high-cost mortgage borrowers differ from the counseling requirements for mortgages that may result in negative amortization. For creditors that extend both high-cost mortgages and loans that may negatively amortize, the Bureau recognizes that creditors may incur costs from having to ensure compliance with differing counseling requirements. These costs may include requiring additional staff training. The Bureau solicits comment on whether conforming the counseling requirements for mortgages that may result in negative amortization with the counseling requirements for high-cost mortgages would help ease compliance burdens on creditors.
Creditors may benefit from these two counseling-related provisions by gaining market share relative to creditors that do not provide clear and complete information to borrowers regarding loan terms. This could occur if, as a result of counseling, applicants to such a creditor obtained a better understanding of the loan offer and were less likely to accept it.
The Bureau does not expect the proposed rule to have a unique impact on depository institutions and credit unions with $10 billion or less in total assets as described in Section 1026. As noted above, although not all creditors report in HMDA, those data suggest that the vast majority of creditors do not make any HOEPA loans. The Bureau expects this would be the case under the proposed rule as well, so few institutions would likely be directly impacted by the proposed rule. As might be expected given the fact that most depository institutions that make mortgage loans (almost 99 percent of the universe of depository institutions that make any closed-end mortgage loans or HELOCs) are estimated to have less than $10 billion in total assets, the estimated share of these lenders that currently make any closed-end HOEPA loans of 6-7 percent is essentially identical to the estimate for all depository institutions. Likewise, about 9-10 percent of depository institutions and credit unions with $10 billion or less in total assets are predicted to make any HOEPA loans under the proposed rule, a fraction just a bit below the estimated 10-11 percent for all depository institutions and credit unions. The impact of the proposed rule on depository institutions and credit unions may vary based on the types of loans that an institution makes currently including, for example, the share of mortgage lending comprised of purchase money mortgages and HELOCs relative to closed-end refinance and home-improvement loans.
The impact of the proposed rule on consumers in rural areas may differ from those for consumers located in urban areas for several reasons. First, rural borrowers may have fewer creditors that they readily comparison shop among. A potential reduction in lending for newly classified HOEPA loans may therefore have a greater impact in rural areas, and a rural borrower that is offered a high-cost mortgage may be less able to obtain a non-HOEPA loan from a different lender. Moreover, mobile homes are more common in rural areas; nearly 16 percent of housing units in rural areas are mobile homes compared to less than four percent of housing units in urban areas.
The Bureau will further consider the benefits, costs and impacts of the proposed provisions and additional proposed modifications before finalizing the proposal. As noted above, there are a number of areas where additional information would allow the Bureau to better estimate the benefits, costs, and impacts of this proposal and more fully inform the rulemaking. The Bureau asks interested parties to provide comment or data on various aspects of the proposed rule, as detailed in the section-by-section analysis. The most significant of these include information or data addressing:
• Measures to account for potential adoption of a broader definition of finance charge, as separately proposed in the Bureau's 2012 TILA-RESPA Proposal;
• The two proposed alternative definitions of a balloon payment;
• Whether conforming the counseling requirements for negative-amortization loans with those for high-cost mortgages would reduce compliance burdens;
• Whether data speak to the distribution of loan terms and features of HELOCs as well as information or data on how provisions in the proposed rule may affect the share of HELOCs that meet the post-Dodd-Frank Act triggers compared to the share of closed-end mortgage loans that meet these triggers;
• Whether certain types of compensation paid to originators of open-end credit plans should be included in the definition of points and fees for open-end credit plans; and
• Whether the homeownership counselor list for loans covered by Regulation X should be required to be given to applicants for all federally related mortgage loans,
To supplement the information discussed in in this preamble and any
First, as the sole system supporting licensure/registration of mortgage companies for 53 agencies for states and territories and mortgage loan originators under the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act), NMLS contains basic identifying information for non-depository mortgage loan origination companies. Firms that hold a State license or State registration through NMLS are required to complete either a standard or expanded Mortgage Call Report (MCR). The Standard MCR includes data on each firm's residential mortgage loan activity including applications, closed loans, individual mortgage loan originator activity, line of credit and other data repurchase information by state. It also includes financial information at the company level. The expanded report collects more detailed information in each of these areas for those firms that sell to Fannie Mae or Freddie Mac.
Second, the Bureau is working to obtain a random selection of loan-level data from a handful of lenders. The Bureau intends to request loan file data from lenders of various sizes and geographic locations to construct a representative dataset. In particular, the Bureau will request a random sample of “GFEs” and “HUD-1” forms from loan files for closed-end mortgage loans. These forms include data on some or all loan characteristics including settlement charges, origination charges, appraisal fees, flood certifications, mortgage insurance premiums, homeowner's insurance, title charges, balloon payment, prepayment penalties, origination charges, and credit charges or points. Through conversations with industry, the Bureau believes that such loan files exist in standard electronic formats allowing for the creation of a representative sample for analysis. The Bureau may use these data to further measure the impacts of certain proposed changes. Calculations of various categories of settlement and origination charges may help the Bureau calculate the various impacts of proposed changes to the definitions of finance charges and other aspects of the proposal, including proposed changes in the number and characteristics of loans that exceed the HOEPA thresholds, loans that would meet the high rate or high risk definitions mandating additional consumer protections, and loans that meet the points and fees thresholds contained in the ability-to-repay provisions of the Dodd-Frank Act.
Third, the Bureau may also use data from the pilot phases of the National Mortgage Database (NMDB) to refine its proposals and/or its assessments of the benefits costs and impacts of these proposals. The NMDB is a comprehensive database, currently under development, of loan-level information on first lien single-family mortgages. It is designed to be a nationally representative sample (1 percent) and contains data derived from credit reporting agency data and other administrative sources along with data from surveys of mortgage borrowers. The first two pilot phases, conducted over the past two years, vetted the data development process, successfully pretested the survey component and produced a prototype dataset. The initial pilot phases validated that credit repository data are both accurate and comprehensive and that the survey component yields a representative sample and a sufficient response rate. A third pilot is currently being conducted with the survey being mailed to holders of five thousand newly originated mortgages sampled from the prototype NMDB. Based on the 2011 pilot, a response rate of fifty percent or higher is expected. These survey data will be combined with the credit repository information of non-respondents, and then deidentified. Credit repository data will be used to minimize non-response bias, and attempts will be made to impute missing values. The data from the third pilot will not be made public. However, to the extent possible, the data may be analyzed to assist the CFPB in its regulatory activities and these analyses will be made publically available.
The survey data from the pilots may be used by the Bureau to analyze consumers shopping behavior regarding mortgages. For instance, the Bureau may calculate the number of consumers who use brokers, the number of lenders contacted by borrowers, how often and with what patterns potential borrowers switch lenders, and other behaviors. Questions may also assess borrowers understanding of their loan terms and the various charges involved with origination. Tabulations of the survey data for various populations and simple regression techniques may be used to help the Bureau with its analysis.
In addition to the comment solicited elsewhere in this proposed rule, the Bureau requests commenters to submit data and to provide suggestions for additional data to assess the issues discussed above and other potential benefits, costs, and impacts of the proposed rule. The Bureau also requests comment on the use of the data described above. Further, the Bureau seeks information or data on the proposed rule's potential impact on consumers in rural areas as compared to consumers in urban areas. The Bureau also seeks information or data on the potential impact of the proposed rule on depository institutions and credit
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.
An IRFA is not required for this proposal because the proposal, if adopted, would not have a significant economic impact on a substantial number of small entities.
The analysis below evaluates the potential economic impact of the proposed rule on small entities as defined by the RFA.
The analysis below uses a pre-statute baseline—except for one of the aspects of the rule over which the Bureau lacks discretion.
The analysis considers the impact of the proposed rule's revisions to HOEPA on closed-end lending by depository institutions (DIs), closed-end lending by non-depositories (non-DIs), and home equity lines of credit separately because these components of the analysis necessarily rely on different data sources. The starting point for much of the analysis of closed-end lending is loan-level data reported under the Home Mortgage Disclosure Act (HMDA).
As a measure of the potential impact of the proposed rule, the analysis considers the potential share of revenue a creditor may forgo if it were to make no high-cost mortgages.
HOEPA loans comprise a small share of total mortgage loans. HMDA data indicate that less than one percent of loans meet the current HOEPA triggers and that this share has generally declined over time.
Around half of commercial banks and thrifts meet the Small Business Administration's definition of small entities, and the large majority of these institutions originate mortgages (Table 1). By comparison, almost 90 percent of credit unions are small entities, but about 40 percent of credit unions have no closed-end mortgage originations. About 90 percent of non-DI mortgage originators have revenues below the relevant Small Business Administration threshold.
To assess the proposed rule's impacts, the analysis aims to estimate the counterfactual set of loans that would have met the definition of a HOEPA loan if the revised triggers had been in effect in 2010.
The changes to the APR and points-and-fees triggers are estimated to increase the share of loans made by HMDA-reporters and potentially subject to HOEPA that are classified as high-cost mortgages from 0.06 percent of loans to 0.3 percent.
To gauge the potential effect of the Dodd-Frank Act amendments to HOEPA related to high-cost, closed-end mortgage loans, the Bureau approximates the potential revenue loss to DIs that report in HMDA based on the estimated share, from HMDA, of home-secured loan originations that would be high-cost mortgage loans and the share of total income (for banks and
thrifts) or total outstanding balances (for credit unions) accounted for by mortgage loans based on Call Report data.
The Bureau estimates that high-cost closed-end mortgage loans account for just a fraction of revenue for most small DIs under both the current and revised triggers (Table 3). The Bureau estimates that, post-Dodd-Frank Act, four percent of small DIs might lose more than one percent of revenue, compared with 1.5 percent of small DIs under the current triggers. At most, about one percent of small DIs would have revenue losses greater than three percent if these creditors chose to make no high-cost, closed-end mortgage loans.
Call Report data for banks and thrifts indicate that nearly all banks and thrifts that make home-equity lines of credit also make closed-end mortgage loans, so the estimated numbers of affected entities are essentially identical to those shown in the first two rows of Table 1.
HELOCs account for more than ten percent of the value of outstanding loans and leases for about 12-13 percent of small DIs, and they comprise more than one-quarter of outstanding balances on loans and leases for only about 2-3 percent of small DIs (Table 4).
Data from SCF indicate that an estimated 1.2 percent of outstanding HELOCs would potentially meet the proposed APR triggers. The analysis of closed-end mortgage loans for HMDA reporters imply that roughly half of loans that meet any HOEPA trigger meet the APR trigger. Thus, combining these estimates suggests that about 2.4 percent of HELOCs might meet the HOEPA triggers.
The SCF is the only source of nationally representative data on interest rates on consummated HELOCs that the Bureau is aware of, but the Bureau acknowledges that the SCF provides a small sample of HELOCs.
The Bureau estimates that, if the rough estimate of 2.4 percent described above were accurate, fewer than 100 small DIs (less than one percent of small DIs) would experience a revenue loss that exceeds one percent (Table 5). If the actual proportion of high-cost HELOCs were a bit more than twice as high as the Bureau estimates,
For depository institutions, the potential loss in revenue due to the Dodd-Frank Act revisions to HOEPA comprises the losses from both closed- and open-end lending. To assess the potential revenues losses for DIs from both sources, the Bureau first estimates the combined loss based on the assumption that ten percent of HELOCs would be HOEPA loans.
The Bureau estimates based on the NMLS/MCR data that 2,282 out of 2,515 total non-depository mortgage originators are small entities (Table 1). According to the NMLS/MCR data, many non-DI creditors originate just a few loans. Just less than one-quarter of nonbank creditors are estimated to have originated ten or fewer loans, for example, and about 40 percent of non-DIs made at most 25 loans. These fractions are similar for small non-DIs as well.
The Bureau estimates that the number of HOEPA loans originated by non-DIs that report in HMDA would increase from fewer than 100 loans under the current triggers to over 7,000 under the post-Dodd-Frank Act triggers.
In estimating the effects of the Dodd-Frank Act revisions to HOEPA on non-DIs' revenues, the Bureau assumes that the share of revenue from HOEPA lending is the same as the share of HOEPA originations for a given creditor. Thus, to examine the impact of the proposed rule on revenue for non-DIs, the Bureau estimates the probability that HOEPA loans comprise more than one percent or three percent of all originations for non-DIs that report in the 2010 HMDA data and extrapolates these estimates for non-DIs that do not report in HMDA.
Under this assumption, the NMLS/MCR data indicate that HOEPA loans accounted for more than one percent of revenue for about five percent of small non-DIs in 2010 (Table 6) and for more than three percent of revenue for a slightly smaller fraction.
The proposed rule would also implement two Dodd-Frank Act provisions related to homeownership counseling. The Bureau expects that neither of these provisions would result in a sizable revenue loss for small creditors. The first requires that a creditor obtain sufficient documentation to demonstrate that a borrower received homeownership counseling before extending a negative-amortization mortgage to a first-time borrower. This requirement will likely apply to only a small fraction of mortgages: only 0.3 percent of mortgages in the 2007 SCF reportedly had negative-amortization features, and by definition this is an upper bound on the share of negative-amortization mortgages held by first-time borrowers.
The second provision is a new requirement that lenders provide loan applicants a list of HUD-certified or -approved homeownership counselors or counseling agencies located in the area of the lender. Under the proposed rule, this requirement would apply to all applicants for a federally related mortgage loan (except for HECM applicants where the lender complies with the similar HECM list requirement) and so would apply to a large number of applications—under the Bureau's estimation methodology in analyzing the paper work burden, nearly 16 million applications for mortgages and HELOCs. Nevertheless, the Bureau believes the burden is likely to be minimal—less than 1 dollar per application—because it should be straightforward to obtain and to provide the geographically specific information on certified or approved homeownership counselors or counseling organizations. Further, the list will likely be provided with other documents that the applicant must receive from the lender.
The Bureau estimates that, under the proposed rule, only a small fraction of depository institutions would be expected to lose more than three or even more than one percent of revenue even under the conservative assumption that lenders forgo making any HOEPA loans. For example, under the assumption that five percent of HELOCs fell within the HOEPA triggers—a proportion more than twice the estimate based on the SCF and therefore still conservative—the Bureau estimates that about ten percent of small DIs would have combined losses that exceed one percent of revenue, and roughly one percent of small DIs would lose more than three percent of revenue. In all cases, the TILA and RESPA counseling provisions noted above would have little impact on these impact estimates.
For non-depository institutions, less than ten percent of small non-DIs are estimated to have more than one percent of revenue from HOEPA loans under the new APR and points-and-fees triggers, and about seven percent of small non-DIs are estimated to have more than three percent of revenue from HOEPA loans.
Accordingly, the undersigned certifies that this proposal, if adopted, would not have a significant economic impact on a substantial number of small entities. The Bureau requests comment on the analysis above and requests any relevant data.
The collection of information contained in this notice of proposed rulemaking, and identified as such, has been submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This proposed rule would amend 12 CFR part 1024 (Regulation X) and 12 CFR part 1026 (Regulation Z). Both Regulations X and Z currently contain collections of information approved by OMB. The Bureau's OMB control number for Regulation X is 3170-0016 and for Regulation Z is 3170-0015.
As described below, the proposed rule would amend the collections of information currently in Regulation X and Regulation Z. RESPA and Regulation X are intended to provide consumers with greater and more timely information on the nature and costs of the residential real estate settlement process. As previously discussed, the proposed rule would amend the information collections currently required by Regulation X by requiring that lenders distribute to prospective borrowers of virtually all federally related mortgage loans a list of federally certified or approved homeownership counselors or counseling organizations located in the area of the lender.
The information collection in the proposed rule is required to provide benefits for consumers and would be mandatory.
Under the proposed rule, the Bureau would account for the entire paperwork burden for respondents under Regulation X. The Bureau generally would also account for the paperwork burden associated with Regulation Z for the following respondents pursuant to its administrative enforcement authority: insured depository institutions with more than $10 billion in total assets, their depository institution affiliates, and certain non-depository lenders. The Bureau and the FTC generally both have enforcement authority over non-depository institutions for Regulation Z. Accordingly, the Bureau has allocated to itself half of the estimated burden to non-depository institutions. Other Federal agencies are responsible for estimating and reporting to OMB the total paperwork burden for the institutions for which they have administrative enforcement authority. They may, but are not required to, use the Bureau's burden estimation methodology.
Using the Bureau's burden estimation methodology, the total estimated burden under the proposed changes to Regulation X for all of the nearly 15,000 institutions subject to the proposed rule, would be approximately 16,400 hours for one-time changes and 260,000 hours annually. Using the Bureau's burden estimation methodology, the total estimated burden under the proposed changes to Regulation Z for the roughly 5,200 institutions, including Bureau respondents,
The aggregate estimates of total burdens presented in this part VIII are based on estimated costs that are weighted averages across respondents. The Bureau expects that the amount of time required to implement each of the proposed changes for a given institution may vary based on the size, complexity, and practices of the respondent.
The Bureau believes the following aspects of the proposed rule would be information collection requirements under the PRA.
The Bureau estimates one-time and ongoing costs to respondents of complying with the housing counselor disclosure requirements in proposed §§ 1024.20, 1026.34(a)(5)(vii), 1026.36(k)(4) as follows. First, the Bureau assumes that lenders who are required to comply with proposed § 1026.34(a)(5)(vii) and § 1026.36(k)(4) would comply with those provisions by satisfying the disclosure obligation in proposed § 1024.20, as permitted by the proposed rule. Thus, the Bureau does not aggregate the burden to respondents of providing the counselor list disclosures in proposed § 1026.34(a)(5)(vii) (high-cost mortgages) and § 1026.36(k)(4) (negative amortization loans to first-time borrowers). However, the Bureau does aggregate burden for reviewing the relevant portions of the regulations and training relevant employees.
The Bureau estimates one-time and ongoing costs to respondents of complying with the requirement to receive the high-cost mortgage counseling certification, as required by proposed § 1026.34(a)(5)(i) and (v), as
On an ongoing basis, the Bureau estimates that respondents would incur a burden of 2 minutes per origination to receive and review the certification form. In addition, the Bureau estimates that, on average, a creditor would incur a cost of $0.025 to retain the certification form. The Bureau estimates that the total ongoing burden across all relevant providers of complying with the high-cost mortgage housing counseling certification requirement would be about 400 hours and $20,000 annually. The Bureau's estimates of the total one-time and ongoing annual paperwork burden to all Bureau respondents to comply with the requirement to receive certification of high-cost mortgage counseling are set forth in Tables 1 and 2, below.
The Bureau does not separately estimate the paperwork burden to respondents of complying with the requirement to receive documentation that first-time borrowers in negatively amortizing loans have received pre-loan homeownership counseling, as required by proposed § 1026.36(k). The Bureau believes that any such burden will be minimal. The universe of respondents for this provision is negligible. Based on data from the 2007 Survey of Consumer Finances, the Bureau estimates that only 0.3 percent of all outstanding mortgages in 2007 had negative amortization features. This estimate is an upper bound on the share of negatively amortizing loans held by first-time borrowers. Further, the Bureau believes that few if any mortgages originated currently could potentially negatively amortize. Moreover, the Bureau believes that the burden to respondents of complying with the provision would be
The Bureau believes that respondents will incur certain one-time and ongoing paperwork burden pursuant to proposed § 1026.32(a)(1), which implements Dodd-Frank's extension of HOEPA coverage to purchase money mortgage loans and open-end credit plans. As a result of proposed § 1026.32(a)(1), respondents that extend purchase money mortgage loans or open-end credit plans that are high-cost mortgages would be required to provide borrowers the special HOEPA disclosure required by § 1026.32(c). The Bureau has identified the following paperwork burdens in connection with proposed § 1026.32(a)(1).
First, the Bureau estimates the burden to creditors originating high-cost purchase money mortgage loans and high-cost HELOCs of revising the HOEPA disclosure required by § 1026.32(c). The Bureau believes that respondents making high-cost purchase money mortgage loans would incur minimal or no additional burden, because the Bureau expects that these respondents would provide the same HOEPA disclosures used for refinance and closed-end home-equity loans subject to § 1026.32.
As discussed in the section-by-section analysis to proposed § 1026.32(c), however, the calculation of certain of the required disclosures differs between the open-end and closed-end credit contexts. Therefore, the Bureau separately estimates the burden for revising the HOEPA disclosure for respondents likely to make high-cost HELOCs. The Bureau estimates that 45 depository institutions for which it has administrative enforcement authority would be likely to originate a high-cost HELOC. Because non-depository institutions are generally less able to fund lines of credit and to have access to the payment system, the Bureau believes that few, if any, non-depository institutions originate open-end credit plans.
The Bureau believes that respondents that are likely to make high-cost HELOCs would incur a one-time burden, but no ongoing burden, in connection with revising the HOEPA disclosure. The one-time burden includes a total estimated burden of less than 1,900 hours across all relevant providers to update their software and information technology systems to generate the HOEPA disclosure form appropriate for open-end credit plans. This estimate combines the burdens for large creditors and a fraction of smaller creditors whom the Bureau assumes would develop the necessary software and systems internally. The Bureau assumes that the remainder of smaller creditors would rely on third-party vendors to obtain a revised disclosure form for high-cost HELOCs; these small creditors are assumed to incur the dollar costs passed on from a vendor that offers the product but no hours burden. In addition, the Bureau assumes that respondents that are likely to make high-cost HELOCs would spend 7.5 minutes each training a subset of loan officers or other loan originators that may make such loans. The Bureau estimates that the training burden across all relevant providers would total nearly 1,300 hours. The total one-time burden across all relevant providers to revise the HOEPA disclosure is therefore about 3,100 hours. The Bureau estimates the corresponding dollar-cost burden is roughly $169,000, corresponding to about $34,000 per year for all respondents if this one-time cost were annualized over five years. The estimated total one-time burden is summarized in Table 1, below.
Respondents that make any high-cost mortgage would incur costs to review the provisions of the regulation related to the HOEPA disclosure. These costs could vary considerably across creditors. A creditor that currently makes high-cost mortgages might be expected to have lower costs to review the relevant section of the regulation than would a creditor that has not previously made high-cost mortgages but now expects to make such loans as a result of, for example, the revised triggers and extension of HOEPA to purchase money mortgage loans and HELOCs. The Bureau's estimates are averages of these costs across lenders.
Comments are specifically requested concerning: (i) Whether the proposed collections of information are necessary for the proper performance of the functions of the Bureau, including whether the information will have practical utility; (ii) the accuracy of the estimated burden associated with the proposed collections of information; (iii) how to enhance the quality, utility, and clarity of the information to be collected; and (iv) how to minimize the burden of complying with the proposed collections of information, including the application of automated collection techniques or other forms of information technology. Comments on the collection of information requirements should be sent to the Office of Management and Budget (OMB), Attention: Desk Officer for the Consumer Financial Protection Bureau, Office of Information and Regulatory Affairs, Washington, DC, 20503, or by the internet to
Condominiums, Consumer protection, Housing, Mortgagees, Mortgages, Mortgage servicing, Recordkeeping requirements, Reporting.
Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.
Certain conventions have been used to highlight the proposed revisions. New language is shown inside bold arrows, and language that would be deleted is shown inside bold brackets.
For the reasons set forth in the preamble, the Bureau proposes to amend Regulation X, 12 CFR part 1024, and Regulation Z, 12 CFR part 1026, as set forth below.
1. The authority citation for part 1024 continues to read as follows:
12 U.S.C. 2603-2605, 2607, 2609, 2617, 5512, 5581.
2. A new § 1024.20 is added to read as follows:
(a)
(i) Within the zip code of the loan applicant's current address; or
(ii) If five counselors or counseling organizations are not within the zip code of the loan applicant's current address, then within the zip code or zip codes closest to the loan applicant's current address.
(2) The list of homeownership counselors or counseling organizations distributed to each loan applicant under this section shall include only homeownership counselors and counseling organizations listed on either:
(i) The most current list of homeownership counselors or counseling organizations made available by the Bureau to lenders for use in complying with the requirements of this section; or
(ii) The most current list maintained by HUD of homeownership counselors or counseling organizations who are certified by the Secretary of HUD pursuant to section 106(e) of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x(e)), or are otherwise approved by HUD.
(3) The list of homeownership counselors or counseling organizations provided under this section must include:
(i) The name, business address, telephone number, and, if available from the Bureau or HUD, the email address and Web site of each listed homeownership counselor or counseling organization; and
(ii) The Web site addresses and telephone numbers of the Bureau and HUD where applicants can access information on homeownership counseling.
(4) The list of homeownership counselors or counseling organizations provided under this section may be combined and provided with other mortgage loan disclosures required pursuant to Regulation Z or this part unless prohibited by Regulation Z or this part.
(5) A mortgage broker or dealer may provide the list of homeownership counselors or counseling organizations required under this section to any loan applicant from whom it receives or for whom it prepares an application. If the mortgage broker or dealer has provided the required list of homeownership counselors or counseling organizations, the lender is not required to provide an additional list. The lender is responsible for ensuring that the list of homeownership counselors or counseling organizations is provided to a loan applicant in accordance with this section.
(6) If the lender, mortgage broker, or dealer does not provide the list of homeownership counselors or counseling organizations required under this section to the loan applicant in person, the lender must mail or deliver the list to the loan applicant by other means. The list may be provided in electronic form, subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (ESIGN) (15 U.S.C. 7001
(7) The lender is not required to provide the list of homeownership counselors or counseling organizations required under this section if, before the end of the three-business-day period provided in paragraph (a)(1) of this section, the lender denies the application or the loan applicant withdraws the application.
(8) If a mortgage loan transaction involves more than one lender, only one list of homeownership counselors or counseling organizations required under this section must be given to the loan applicant and the lenders shall agree among themselves which lender must comply with the requirements that this section imposes on any or all of them. If there is more than one loan applicant, the required list of homeownership counselors or counseling organizations may be provided to any loan applicant with primary liability on the mortgage loan obligation.
(b)
(c)
3. The authority citation for part 1026 is revised to read as follows:
12 U.S.C. ▸2601; 2603-2605, 2607, 2609, 2617, 5511,◂ 5512, ▸5532,◂ 5581; 15 U.S.C. 1601
4. Section 1026.1 is amended by revising paragraph (d)(5) to read as follows:
(d) * * *
(5) Subpart E contains special rules for mortgage transactions. Section 1026.32 requires certain disclosures and provides limitations for closed-end loans ▸and open-end credit plans◂ that have rates or fees above specified amounts ▸or certain prepayment penalties◂. Section 1026.33 requires special disclosures, including the total annual loan cost rate, for reverse mortgage transactions. Section 1026.34 prohibits specific acts and practices in connection with [closed-end] mortgage transactions that are subject to § 1026.32. Section 1026.35 prohibits specific acts and practices in connection with closed-end higher-priced mortgage loans, as defined in § 1026.35(a). Section 1026.36 prohibits specific acts and practices in connection with an extension of credit secured by a dwelling.
5. Section 1026.31 is amended by revising paragraph (c)(1) to read as follows:
(c)
(i)
(ii)
(A) The creditor provides new written disclosures; and
(B) The consumer and creditor sign a statement that the new disclosures were provided by telephone at least three days prior to consummation ▸or prior to account opening, as applicable◂.
(iii)
6. Section 1026.32 is amended by:
A. Revising the section heading;
B. Revising paragraph (a);
C. Revising paragraph (b);
D. Revising paragraphs (c)(3), (4) and (5);
E. Revising paragraph (d) introductory text, paragraph (d)(1), and paragraphs (d)(6) through (8).
The additions and revisions read as follows:
(a) ▸
Alternative 1—Paragraph (a)(1)(i)
(i) ▸The annual percentage rate applicable to the transaction, as described in paragraph (a)(2) of this section, will exceed the average prime offer rate, as defined in § 1026.35(a)(2)(ii), for a comparable transaction by more than:
(A) 6.5 percentage points for a first-lien transaction, other than as described in paragraph (a)(1)(i)(B) of this section;
(B) 8.5 percentage points for a first-lien transaction if the dwelling is personal property and the total loan amount is less than $50,000; or
(C) 8.5 percentage points for a subordinate-lien transaction; or◂ [The annual percentage rate at consummation will exceed by more than 8 percentage points for first-lien loans, or by more than 10 percentage points for subordinate-lien loans, the yield on Treasury securities having comparable periods of maturity to the loan maturity as of the fifteenth day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor; or]
Alternative 2—Paragraph (a)(1)(i)
(i) ▸The transaction coverage rate, as defined in § 1026.35(a)(2)(i), applicable to the closed-end mortgage loan or the annual percentage rate applicable to the open-end credit plan, as provided in paragraph (a)(2) of this section, will exceed the average prime offer rate, as defined in § 1026.35(a)(2)(ii), for a comparable transaction by more than:
(A) 6.5 percentage points for a first-lien transaction, other than as described in paragraph (a)(1)(i)(B) of this section;
(B) 8.5 percentage points for a first-lien transaction if the dwelling is personal property and the total loan amount is less than $50,000; or
(C) 8.5 percentage points for a subordinate-lien transaction; or◂ [The annual percentage rate at consummation will exceed by more than 8 percentage points for first-lien loans, or by more than 10 percentage points for subordinate-lien loans, the yield on Treasury securities having comparable periods of maturity to the loan maturity as of the fifteenth day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor; or]
(ii) The total points and fees payable [by the consumer at or before loan closing will exceed] ▸in connection with the transaction, as described in paragraphs (b)(1) through (5) of this section, will exceed:
(A) 5 percent of the total loan amount for a transaction with a total loan amount of $20,000 or more; or
(B) The lesser of 8 percent of the total loan amount or $1,000 for a transaction with a total loan amount of less than $20,000◂ [the greater of 8 percent of the total loan amount, or $400]; the ▸$1,000◂ [$400] figure shall be adjusted annually on January 1 by the annual percentage change in the Consumer Price Index that was reported on the preceding June 1[.] ▸; or
(iii) Under the terms of the loan contract or open-end credit agreement, the creditor can charge a prepayment penalty, as defined in paragraph (b)(8) of this section, more than 36 months after consummation or account opening, or prepayment penalties that can exceed, in total, more than two percent of the amount prepaid.◂
(2) ▸
(i) For a fixed-rate transaction in which the annual percentage rate will not vary during the term of the loan or plan, the interest rate in effect on the date of consummation or account opening of the transaction;
(ii) For a variable-rate transaction in which the interest rate may vary during the term of the loan or plan in accordance with an index that is not under the creditor's control, the interest rate that results from adding the maximum margin permitted at any time during the term of the loan or plan to the value of the index rate in effect on the date of the consummation or account opening of the transaction; and
(iii) For a transaction in which the interest rate may vary during the term of the loan or plan, other than a transaction described in paragraph (a)(2)(ii) of this section, the maximum interest rate that may be imposed during the term of the loan or plan.◂ [This section does not apply to the following:
(i) A residential mortgage transaction.
(ii) A reverse mortgage transaction subject to § 1026.33.
(iii) An open-end credit plan subject to subpart B of this part.]
(b)
(1) For purposes of paragraph (a)(1)(ii) of this section, ▸in connection with a closed-end mortgage loan,◂
(i) All items [required to be disclosed under § 1026.4(a) and 1026.4(b), except interest or the time-price differential;] ▸included in the finance charge under § 1026.4(a) and (b), but excluding items described in § 1026.4(c) through (e) (except to the extent otherwise included by this paragraph (b)(1)) and also excluding:
(A) Interest or the time-price differential;
(B) Any premium or other charge for any guaranty or insurance protecting the creditor against the consumer's default or other credit loss to the extent that the premium or charge is:
(
(
(
(ii) All compensation paid ▸directly or indirectly by a consumer or creditor to a loan originator, as defined in § 1026.36(a)(1), including a loan originator that is also the creditor in a table-funded transaction◂ [to mortgage brokers];
(iii) All items listed in § 1026.4(c)(7) (other than amounts held for future payment of taxes) ▸payable at or before consummation, unless:◂ [unless the charge is reasonable, the creditor receives no direct or indirect compensation in connection with the charge, and the charge is not paid to an affiliate of the creditor; and]
(A) The charge is reasonable;
(B) The creditor receives no direct or indirect compensation in connection with the charge; and
(C) The charge is not paid to an affiliate of the creditor;◂
(iv) ▸Premiums or other charges payable at or before consummation for any credit life, credit disability, credit unemployment, or credit property insurance, or any other life, accident, health, or loss-of-income insurance, or any payments directly or indirectly for any debt cancellation or suspension agreement or contract;◂ [Premiums or other charges for credit life, accident, health, or loss-of-income insurance, or debt-cancellation coverage (whether or not the debt-cancellation coverage is insurance under applicable law) that provides for cancellation of all or part of the consumer's liability in the event of the loss of life, health, or income or in the case of accident, written in connection with the credit transaction.]
▸(v) The maximum prepayment penalty, as defined in paragraph (b)(8)(i) of this section, that may be charged or collected under the terms of the mortgage loan; and
(vi) The total prepayment penalty, as defined in paragraph (b)(8)(i) of this section, incurred by the consumer if the consumer refinances the existing mortgage loan with the current holder of the existing loan, a servicer acting on behalf of the current holder, or an affiliate of either.◂
(2) ▸For purposes of paragraph (b)(1)(ii) of this section, the term
(i) An employee of a retailer of manufactured homes who does not take a residential mortgage loan application, offer or negotiate terms of a residential mortgage loan, or advise a consumer on loan terms (including rates, fees, and other costs) but who, for compensation or other monetary gain, or in expectation of compensation or other monetary gain, assists a consumer in obtaining or applying to obtain a residential mortgage loan;
(ii) A person that only performs real estate brokerage activities and is licensed or registered in accordance with applicable State law, unless such person is compensated by a creditor or loan originator, as defined in § 1026.36(a)(1), or by any agent of the creditor or loan originator; or
(iii) A servicer or servicer employees, agents, and contractors, including but not limited to those who offer or negotiate terms of a transaction for purposes of renegotiating, modifying, replacing, and subordinating principal of existing mortgages where borrowers are behind in their payments, in default, or have a reasonable likelihood of being in default or falling behind.
(3) For purposes of paragraph (a)(1)(ii) of this section, in connection with an open-end credit plan,
(i) All items included in the finance charge under § 1026.4(a) and (b) and payable at or before account opening, except interest or the time-price differential;
(ii) All items listed in § 1026.4(c)(7) (other than amounts held for future payment of taxes) payable at or before account opening, unless:
(A) The charge is reasonable;
(B) The creditor receives no direct or indirect compensation in connection with the charge; and
(C) The charge is not paid to an affiliate of the creditor;
(iii) Premiums or other charges payable at or before account opening for any credit life, credit disability, credit unemployment, or credit property insurance, or any other life, accident, health, or loss-of-income insurance, or any payments directly or indirectly for any debt cancellation or suspension agreement or contract;
(iv) The maximum prepayment penalty, as defined in paragraph (b)(8)(ii) of this section, that may be charged or collected under the terms of the open-end credit plan;
(v) Any fees charged for participation in an open-end credit plan, as described in § 1026.4(c)(4), whether assessed on an annual or other periodic basis; and
(vi) Any transaction fee, including any minimum fee or per-transaction fee, that will be charged for a draw on the credit line.
(4) For purposes of paragraph (b)(3) of this section, the term
(5) For purposes of paragraphs (b)(1) and (3) of this section, the term
(i)
(ii)
(
(
(B) If two bona fide discount points have not been excluded under paragraph (b)(5)(ii)(A) of this section, up to one bona fide discount point paid by the consumer in connection with the transaction if the interest rate for the loan or plan without such points does not exceed:
(
(
(C) For purposes of this paragraph (b)(5)(ii), the term
(6)
(ii)
(7)◂
▸(8)
(ii)
(c) * * *
(3)
▸(ii) For an open-end credit plan:
(A) An example showing the first minimum periodic payment for the draw period, the first minimum periodic payment for any repayment period, and the balance outstanding at the beginning of any repayment period. The example must be based on the following assumptions:
(B) If the credit contract provides for a balloon payment under the plan as permitted under paragraph (d)(1) of this section, a disclosure of that fact and an example showing the amount of the balloon payment based on the assumptions described in paragraph (c)(3)(ii)(A) of this section.
(C) A statement that the example payments show the first minimum periodic payments at the current annual percentage rate if the consumer borrows the maximum credit available when the account is opened and does not obtain any additional extensions of credit, or a substantially similar statement.
(D) A statement that the example payments are not the consumer's actual payments and that the actual minimum periodic payments will depend on the amount the consumer borrows, the interest rate applicable to that period, and whether the consumer pays more than the required minimum periodic payment, or a substantially similar statement.◂
(4)
(5)
▸(ii) For an open-end credit plan, the credit limit for the plan when the account is opened.◂
(d)
Alternative 1—Paragraph (d)(1)(i)
(1)(i)
Alternative 2—Paragraph (d)(1)(i)
(1)(i)
(ii)
(iii)
(6)
(7) ▸[Reserved.]◂ [
(i) The penalty will not apply after the two-year period following consummation;
(ii) The penalty will not apply if the source of the prepayment funds is a refinancing by the creditor or an affiliate of the creditor;
(iii) At consummation, the consumer's total monthly debt payments (including amounts owed under the mortgage) do not exceed 50 percent of the consumer's monthly gross income, as verified in accordance with § 1026.34(a)(4)(ii); and
(iv) The amount of the periodic payment of principal or interest or both may not change during the four-year period following consummation.]
(8)▸
▸(i) The consumer fails to meet the repayment terms for any outstanding balance that results in a default in
(ii) The acceleration is pursuant to a due-on-sale clause in the loan or open-end credit agreement; or
(iii) The consumer materially violates some other provision of the loan or open-end credit agreement unrelated to the payment schedule.◂
[(i) There is fraud or material misrepresentation by the consumer in connection with the loan;
(ii) The consumer fails to meet the repayment terms of the agreement for any outstanding balance; or
(iii) There is any action or inaction by the consumer that adversely affects the creditor's security for the loan, or any right of the creditor in such security.]
7. Section 1026.34 is amended by revising paragraphs (a) and (b) to read as follows:
(a)
(i) By an instrument payable to the consumer or jointly to the consumer and the contractor; or
(ii) At the election of the consumer, through a third-party escrow agent in accordance with terms established in a written agreement signed by the consumer, the creditor, and the contractor prior to the disbursement.
(2)
(3)
(4)
(i)
(ii)
(A) A creditor must verify amounts of income or assets that it relies on to determine repayment ability, including expected income or assets, by the consumer's Internal Revenue Service Form W-2, tax returns, payroll receipts, financial institution records, or other third-party documents that provide reasonably reliable evidence of the consumer's income or assets.
(B) Notwithstanding paragraph (a)(4)(ii)(A), a creditor has not violated paragraph (a)(4)(ii) if the amounts of income and assets that the creditor relied upon in determining repayment ability are not materially greater than the amounts of the consumer's income or assets that the creditor could have verified pursuant to paragraph (a)(4)(ii)(A) at the time ▸of account opening◂ [the loan was consummated].
(C) A creditor must verify the consumer's current obligations.
(iii)
(A) Verifies the consumer's repayment ability as provided in paragraph (a)(4)(ii);
(B) ▸Determines the consumer's repayment ability taking into account current obligations and mortgage-related obligations as defined in paragraph (a)(4)(i) of this section, and using the largest required minimum periodic payment based on the following assumptions:
(
(
(
(C) Assesses the consumer's repayment ability taking into account at least one of the following: The ratio of total debt obligations to income, or the income the consumer will have after paying debt obligations.
(iv)
(A) The regular periodic payments
(B) The
(v)
▸(5)
(ii)
(iii)
(B)
(iv)
(A) The name(s) of the consumer(s) who obtained counseling;
(B) The date(s) of counseling;
(C) The name and address of the counselor;
(D) A statement that the consumer(s) received counseling on the advisability of the high-cost mortgage based on the terms provided in either the good faith estimate or the disclosures required by § 1026.40; and
(E) A statement that the counselor has verified that the consumer(s) received the disclosures required by either § 1026.32(c) or the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2601
(v)
(vi)
(vii)
(B)
(6)
(7)
(8)
(ii)
(iii)
(iv)
(9)
(ii)
(iii)
(iv)
(v)
(10)
(b)
8. Section 1026.36 is revised to add new paragraphs (g), (h), (i), (j), and (k) as follows:
▸(g) [Reserved.]
(h) [Reserved.]
(i) [Reserved.]
(j) [Reserved.]
(k)
(2)
(i) A “first-time borrower” means a consumer who has not previously received a closed-end mortgage loan or open-end credit plan secured by a dwelling.
(ii) “Negative amortization” means a payment schedule with regular periodic payments that cause the principal balance to increase.
(3)
(4)
(ii)
9. In Supplement I to Part 1026—Official Interpretations:
A. Under
i. The
ii. Under subheading
iii. Under subheading
iv. The subheading
B. Under
i. The heading
ii. The subheading
iii. The subheading
iv. Under new subheading
a. Under subheading
b. Under subheading
c. The subheading
v. The subheading
vi. Under subheading
a. Under subheading
b. Under subheading
c. Under subheading
d. The subheading
e. The subheading
f. The subheading
g. The subheading
h. The subheading
i. The subheading
j. The subheading
k. The subheading
vii. Under subheading
a. The subheading
b. The subheading
c. Under subheading
d. The subheading
viii. Under subheading
a. Paragraph 1. is revised.
b. Under subheading
c. Under subheading
d. Under subheading
e. The subheading
f. Under the subheading
g. The subheading
h. The subheading
i. Under the subheading
C. Under
i. The subheading
ii. Under the subheading
iii. Under the subheading
a. Paragraphs 1., 2., 3., 4., and 5. are revised.
b. Under the subheading
c. Under the subheading
d. Under the subheading
e. Under the subheading
iv. New
v. The subheading
D. Under
i. New
The revisions, removals, and additions read as follows:
1.
2.
1.
31(c)(1)(iii) Consumer's waiver of waiting period before consummation ▸or account opening◂.
▸
1. The term
1. ▸
2. ▸
3. ▸
4. ▸
i. If the H-15 contains a yield for Treasury securities with constant maturities of 7 years and 10 years and no maturity in between, the annual percentage rate for an 8-year mortgage loan is compared with the yield of securities having a 7-year maturity, and the annual percentage rate for a 9-year mortgage loan is compared with the yield of securities having a 10-year maturity.
ii. If a mortgage loan has a term of 15 years, and the H-15 contains a yield of 5.21 percent for constant maturities of 10 years, and also contains a yield of 6.33 percent for constant maturities of 20 years, then the creditor compares the annual percentage rate for a 15-year mortgage loan with the yield for constant maturities of 10 years.
iii. If a mortgage loan has a term of 30 years, and the H-15 does not contain a yield for 30-year constant maturities, but contains a yield for 20-year constant maturities, and an average yield for securities with remaining terms to maturity of 25 years and over, then the annual percentage rate on the loan is compared with the yield for 20-year constant maturities.]
Paragraph 32(a)(1)(ii).
1. [
i. If the consumer finances a $300 fee for a creditor-conducted appraisal and pays $400 in points at closing, the amount financed under § 1026.18(b) is $9,900 ($10,000 plus the $300 appraisal fee that is paid to and financed by the creditor, less $400 in prepaid finance charges). The $300 appraisal fee paid to the creditor is added to other points and fees under § 1026.32(b)(1)(iii). It is deducted from the amount financed ($9,900) to derive a total loan amount of $9,600.
ii. If the consumer pays the $300 fee for the creditor-conducted appraisal in cash at closing, the $300 is included in the points and fees calculation because it is paid to the creditor. However, because the $300 is not financed by the creditor, the fee is not part of the amount financed under § 1026.18(b). In this case, the amount financed is the same as the total loan amount: $9,600 ($10,000, less $400 in prepaid finance charges).
iii. If the consumer finances a $300 fee for an appraisal conducted by someone other than the creditor or an affiliate, the $300 fee is not included with other points and fees under § 1026.32(b)(1)(iii). The amount financed under § 1026.18(b) is $9,900 ($10,000 plus the $300 fee for an independently-conducted appraisal that is financed by the creditor, less the $400 paid in cash and deducted as prepaid finance charges).
iv. If the consumer finances a $300 fee for a creditor-conducted appraisal and a $500 single premium for optional credit life insurance, and pays $400 in points at closing, the amount financed under § 1026.18(b) is $10,400 ($10,000, plus the $300 appraisal fee that is paid to and financed by the creditor, plus the $500 insurance premium that is financed by the creditor, less $400 in prepaid finance charges). The $300 appraisal fee paid to the creditor is added to other points and fees under § 1026.32(b)(1)(iii), and the $500 insurance premium is added under 1026.32(b)(1)(iv). The $300 and $500 costs are deducted from the amount financed ($10,400) to derive a total loan amount of $9,600.
2.]▸
▸2.
i. For 1996, $412, reflecting a 3.00 percent increase in the CPI-U from June 1994 to June 1995, rounded to the nearest whole dollar.
ii. For 1997, $424, reflecting a 2.9 percent increase in the CPI-U from June 1995 to June 1996, rounded to the nearest whole dollar.
iii. For 1998, $435, reflecting a 2.5 percent increase in the CPI-U from June 1996 to June 1997, rounded to the nearest whole dollar.
iv. For 1999, $441, reflecting a 1.4 percent increase in the CPI-U from June 1997 to June 1998, rounded to the nearest whole dollar.
v. For 2000, $451, reflecting a 2.3 percent increase in the CPI-U from June 1998 to June 1999, rounded to the nearest whole dollar.
vi. For 2001, $465, reflecting a 3.1 percent increase in the CPI-U from June 1999 to June 2000, rounded to the nearest whole dollar.
vii. For 2002, $480, reflecting a 3.27 percent increase in the CPI-U from June 2000 to June 2001, rounded to the nearest whole dollar.
viii. For 2003, $488, reflecting a 1.64 percent increase in the CPI-U from June 2001 to June 2002, rounded to the nearest whole dollar.
ix. For 2004, $499, reflecting a 2.22 percent increase in the CPI-U from June 2002 to June 2003, rounded to the nearest whole dollar.
x. For 2005, $510, reflecting a 2.29 percent increase in the CPI-U from June 2003 to June 2004, rounded to the nearest whole dollar.
xi. For 2006, $528, reflecting a 3.51 percent increase in the CPI-U from June 2004 to June 2005, rounded to the nearest whole dollar.
xii. For 2007, $547, reflecting a 3.55 percent increase in the CPI-U from June 2005 to June 2006, rounded to the nearest whole dollar.
xiii. For 2008, $561, reflecting a 2.56 percent increase in the CPI-U from June 2006 to June 2007, rounded to the nearest whole dollar.
xiv. For 2009, $583, reflecting a 3.94 percent increase in the CPI-U from June 2007 to June 2008, rounded to the nearest whole dollar.
xv. For 2010, $579, reflecting a 0.74 percent decrease in the CPI-U from June 2008 to June 2009, rounded to the nearest whole dollar.
xvi. For 2011, $592, reflecting a 2.2 percent increase in the CPI-U from June 2009 to June 2010, rounded to the nearest whole dollar.
xvii. For 2012, $611, reflecting a 3.2 percent increase in the CPI-U from June 2010 to June 2011, rounded to the nearest whole dollar.
▸
1.
2.
i. Assume that the terms of a home-equity line of credit with an initial credit limit of $10,000 require the consumer to pay a $500 flat fee if the consumer terminates the plan less than 36 months after account opening. The $500 fee constitutes a prepayment penalty under § 1026.32(b)(8)(ii), and the penalty is greater than two percent of the $10,000 initial credit limit, which is $200. Under § 1026.32(a)(1)(iii), the plan is a high-cost mortgage subject to the requirements and restrictions set forth in §§ 1026.32 and 1026.34.
ii. Assume that the terms of a home-equity line of credit with an initial credit limit of $10,000 and a ten-year term require the consumer to pay a $200 flat fee if the consumer terminates the plan prior to its normal expiration. The $200 prepayment penalty does not exceed two percent of the initial credit limit, but the terms of the agreement permit the creditor to charge the fee more than 36 months after account opening. Thus, under § 1026.32(a)(1)(iii), the plan is a high-cost mortgage subject to the requirements and restrictions set forth in §§ 1026.32 and 1026.34.
iii. Assume that, under the terms of a home-equity line of credit with an initial credit limit of $150,000, the creditor may charge the consumer any closing costs waived by the creditor if the consumer terminates the plan less than 36 months after account opening. Assume also that the creditor waived closing costs of $1,000. Bona fide third-party charges comprised $800 of the $1,000 in waived closing costs, and origination charges retained by the creditor or its affiliate comprised the remaining $200. Under § 1026.32(b)(8)(ii), the $800 in bona fide third-party charges is not a prepayment penalty, while the $200 for the creditor's own originations costs is a prepayment penalty. The total prepayment penalty of $200 is less than two percent of the initial $150,000 credit limit, and the penalty does not apply if the consumer terminates the plan more than 36 months after account opening. Thus, the plan is not a high-cost mortgage under § 1026.32(a)(1)(iii).◂
[
1. [
2.
3.
ii. Section 1026.32(a)(2)(iii) applies when the interest rates applicable to a transaction may vary, except as described in § 1026.32(a)(2)(ii). For example, § 1026.32(a)(2)(iii) applies to a closed-end mortgage loan when interest rate changes are at the creditor's discretion, such as when the index is internally defined (for example, by that creditor's prime rate). Section 1026.32(a)(2)(iii) also applies where multiple fixed rates apply to a transaction, such as a stepped-rate mortgage. For example, assume the following rates will apply to a transaction: Three percent for the first six months, four percent for the next 10 years, and five percent for the remaining loan term. In this example, § 1026.32(a)(2)(iii) would be used to determine the interest rate and five percent would be the maximum interest rate applicable to the transaction.
4.
1.
2.
3.
ii. In addition, to qualify for the exclusion from points and fees, upfront private mortgage insurance premiums must be required to be refunded on a pro rata basis and the refund must be automatically issued upon notification of the satisfaction of the underlying mortgage loan.
iii. To illustrate: Assume that a $3,000 upfront private mortgage insurance premium charged on a closed-end mortgage loan is required to be refunded on a pro rata basis and automatically issued upon notification of the satisfaction of the underlying mortgage loan. Assume also that the maximum upfront premium allowable under the National Housing Act is $2,000. In this case, the creditor could exclude $2,000 from “points and fees” but would have to include the $1,000 that exceeds the allowable premium under the National Housing Act. However, if the $3,000 upfront private mortgage insurance premium were not required to be refunded on a pro rata basis and automatically issued upon notification of the satisfaction of the underlying mortgage loan, the entire $3,000 premium must be included in “points and fees.”
4.
1. ▸
▸2.
i. In determining “points and fees” under § 1026.32, loan originator compensation includes the dollar value of compensation paid to a loan originator for a closed-end mortgage loan, such as a bonus, commission, yield spread premium, award of merchandise, services, trips, or similar prizes, or hourly pay for the actual number of hours worked on a particular transaction. Compensation paid to a loan originator for a closed-end mortgage loan must be included in the “points and fees” calculation for that loan whenever paid, whether before, at, or after closing, as long as that compensation amount can be determined at the time of closing. Thus, loan originator compensation for a closed-end mortgage loan includes compensation that will be paid as part of a periodic bonus, commission, or gift, if a portion of the dollar value of the bonus, commission, or gift can be attributed to that loan. The following examples illustrate the rule:
A. Assume that, according to a creditor's compensation policies, the creditor awards its loan officers a bonus every year based on the number of loan applications taken by the loan officer that result in consummated transactions during that year, and that each consummated transaction increases the bonus by $100. In this case, the $100 bonus must be counted in the amount of loan originator compensation that the creditor includes in “points and fees.”
B. Assume that, according to a creditor's compensation policies, the creditor awards its loan officers a year-end bonus equal to a flat dollar amount for each of the consummated transactions originated by the loan officer during that year. Assume also that the per-transaction dollar amount is determined at the end of the year, based on the total dollar value of consummated transactions originated by the loan officer. If at the time a mortgage transaction is consummated the loan officer has originated total volume that qualifies the loan officer to receive a $300 bonus per transaction, the $300 bonus is loan originator compensation that must be included in “points and fees” for the transaction.
C. Assume that, according to a creditor's compensation policies, the creditor awards its loan officers a bonus every year based on the number of consummated transactions originated by the loan officer during that year. Assume also that for the first 10 transactions originated by the loan officer in a given year, no bonus is awarded; for the next 10 transactions originated by the loan officer up to 20, a bonus of $100 per transaction is awarded; and for each transaction originated after the first 20, a bonus of $200 per transaction is awarded. In this case, for the first 10 transactions originated by a loan officer during a given year, no amount of loan originator compensation need be included in “points and fees.” For any mortgage transaction made after the first 10, up to the 20th transaction, $100 must be included in “points and fees.” For any mortgage transaction made after the first 20, $200 must be included in “points and fees.”
ii. In determining “points and fees” under this section, loan originator compensation excludes compensation that cannot be attributed to a particular transaction at the time of origination, including, for example:
A. Compensation based on the long-term performance of the loan originator's loans.
B. Compensation based on the overall quality of a loan originator's loan files.
C. The base salary of a loan originator who is also the employee of the creditor, not
3.
1.
1. ▸
▸2.
1.
1.
1.
1.
1.
2.
1.
1. Section 1026.36(a)(1) and comment 36(a)-1 provide guidance about the term
2.
3.
1.
32(b)(6) Total loan amount.
1.
1.
i. A charge determined by treating the loan balance as outstanding for a period of time after prepayment in full and applying the interest rate to such “balance,” even if the charge results from interest accrual amortization used for other payments in the transaction under the terms of the loan contract. “Interest accrual amortization” refers to the method by which the amount of interest due for each period (
ii. A fee, such as an origination or other loan closing cost, that is waived by the creditor on the condition that the consumer does not prepay the loan.
iii. A minimum finance charge in a simple interest transaction.
iv. Computing a refund of unearned interest by a method that is less favorable to the consumer than the actuarial method, as defined by section 933(d) of the Housing and Community Development Act of 1992, 15 U.S.C. 1615(d). For purposes of computing a refund of unearned interest, if using the actuarial method defined by applicable State law results in a refund that is greater than the refund calculated by using the method described in section 933(d) of the Housing and Community Development Act of 1992, creditors should use the State law definition in determining if a refund is a prepayment penalty.
2.
3.
i. Fees imposed for preparing and providing documents when a loan is paid in full or when an open-end credit plan is terminated, if such fees are imposed whether or not the loan is prepaid or the consumer terminates the plan prior to the end of its term. Examples include a loan payoff statement, a reconveyance document, or another document releasing the creditor's security interest in the dwelling that secures the loan or line of credit.
ii. Loan guarantee fees.
iii. In the case of an open-end credit plan, fees that are not prepayment penalties also include any fee that the creditor may impose in lieu of termination and acceleration under comment 40(f)(2)-2.◂
▸
1.
1. ▸
1.◂
i. If the loan has more than one payment level, the regular payment for each level must be disclosed. For example:
A. In a 30-year graduated payment mortgage where there will be payments of $300 for the first 120 months, $400 for the next 120 months, and $500 for the last 120 months, each payment amount must be disclosed, along with the length of time that the payment will be in effect.
B. If interest and principal are paid at different times, the regular amount for each must be disclosed.
C. In discounted or premium variable-rate transactions where the creditor sets the initial interest rate and later rate adjustments are determined by an index or formula, the creditor must disclose both the initial payment based on the discount or premium and the payment that will be in effect thereafter. Additional explanatory material which does not detract from the required disclosures may accompany the disclosed amounts. For example, if a monthly payment is $250 for the first six months and then increases based on an index and margin, the creditor could use language such as the following: “Your regular monthly payment will be $250 for six months. After six months your regular monthly payment will be based on an index and margin, which currently would make your payment $350. Your actual payment at that time may be higher or lower.”
1.
i. The consumer borrows the full credit line at account opening with no additional extensions of credit.
ii. The consumer makes only minimum periodic payments during the draw period and any repayment period.
iii. If the annual percentage rate may increase during the plan, the maximum
1.
1.
Alternative 1—Paragraph 32(d)(1)(i)
1.
Alternative 2—Paragraph 32(d)(1)(i)
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i. Initial payments for a variable-rate transaction consummated on January 1, 2010 are $1,000 per month. Under the loan agreement, the first possible date that a payment in a different amount may be due is January 1, 2014. A prepayment penalty is permitted with this mortgage transaction provided that the other § 1026.32(d)(7) conditions are met, that is: provided that the prepayment penalty is permitted by other applicable law, the penalty expires on or before December 31, 2011, the penalty will not apply if the source of the prepayment funds is a refinancing by the creditor or its affiliate, and at consummation the consumer's total monthly debts do not exceed 50 percent of the consumer's monthly gross income, as verified.
ii. Initial payments for a variable-rate transaction consummated on January 1, 2010 are $1,000 per month. Under the loan agreement, the first possible date that a payment in a different amount may be due is December 31, 2013. A prepayment penalty is prohibited with this mortgage transaction because the payment may change within the four-year period following consummation.
iii. Initial payments for a graduated-payment transaction consummated on January 1, 2010 are $1,000 per month. Under the loan agreement, the first possible date that a payment in a different amount may be due is January 1, 2014. A prepayment penalty is permitted with this mortgage transaction provided that the other § 1026.32(d)(7) conditions are met, that is: provided that the prepayment penalty is permitted by other applicable law, the penalty expires on or before December 31, 2011, the penalty will not apply if the source of the prepayment funds is a refinancing by the creditor or its affiliate, and at consummation the consumer's total monthly debts do not exceed 50 percent of the consumer's monthly gross income, as verified.
iv. Initial payments for a step-rate transaction consummated on January 1, 2010 are $1,000 per month. Under the loan agreement, the first possible date that a payment in a different amount may be due is December 31, 2013. A prepayment penalty is prohibited with this mortgage transaction because the payment may change within the four-year period following consummation.
2.
i. A change in the amount of a periodic payment that is allocated to principal or interest that does not change the total amount of the periodic payment.
ii. The borrower's actual unanticipated late payment, delinquency, or default; and
iii. The borrower's voluntary payment of additional amounts (for example when a consumer chooses to make a payment of interest and principal on a loan that only requires the consumer to pay interest).]
1.
1. ▸
2. [
i. ▸
A. [The consumer transfers title to the property or sells the property without the permission of the creditor.
B.] The consumer fails to maintain required insurance on the dwelling.
[C.]▸B.◂ The consumer fails to pay taxes on the property.
[D.]▸C.◂ The consumer permits the filing of a lien senior to that held by the creditor.
[E.] ▸D.◂ [The sole consumer obligated on the credit dies.
F. The property is taken through eminent domain.
G]. A prior lienholder forecloses.
ii. By contrast, the filing of a judgment against the consumer would ▸be cause for◂[permit] termination and acceleration only if the amount of the judgment and collateral subject to the judgment is such that the creditor's security is adversely ▸and materially◂ affected ▸in violation of the loan or open-end credit agreement◂. If the consumer commits waste or otherwise destructively uses or fails to maintain the property ▸, including demolishing or removing structures from the property,◂ such that the action adversely affects the security ▸in a material way◂, the loan ▸or open-end credit agreement◂ may be terminated and the balance accelerated. Illegal use of the property by the consumer would permit termination and acceleration if it subjects the property to seizure. [If one of two consumers obligated on a loan dies, the creditor may terminate the loan and accelerate the balance if the security is adversely affected.] If the consumer moves out of the dwelling that secures the loan and that action adversely affects the security ▸in a material way◂, the creditor may terminate a loan ▸or open-end credit agreement◂ and accelerate the balance.
▸3.
2.
i. Creditor A is prohibited from refinancing the January 2003 loan (or any other ▸high-cost mortgage◂[loan subject to § 1026.32] to the same borrower) into a ▸high-cost mortgage◂[loan subject to § 1026.32], until January 15, 2004. Creditor B is restricted until January 15, 2004, or such date prior to January 15, 2004 that Creditor B ceases to hold or service the loan. During the prohibition period, Creditors A and B may make a subordinate lien loan that does not refinance a ▸high-cost mortgage◂[loan subject to § 1026.32]. Assume that on April 1, 2003, Creditor A makes but does not assign a second-lien ▸high-cost mortgage◂[loan subject to § 1026.32]. In that case, Creditor A would be prohibited from refinancing either the first-lien or second-lien loans (or any other ▸high-cost mortgage◂ loans to that borrower [subject to § 1026.32]) into another ▸high-cost mortgage◂[loan subject to § 1026.32] until April 1, 2004.
ii. The loan made by Creditor A on January 15, 2003 (and assigned to Creditor B) may be refinanced by Creditor C at any time. If Creditor C refinances this loan on March 1, 2003 into a new ▸high-cost mortgage◂[loan subject to § 1026.32], Creditor A is prohibited from refinancing the loan made by Creditor C (or any other ▸high-cost mortgage◂[loan subject to § 1026.32] to the same borrower) into another ▸high-cost mortgage◂[loan subject to § 1026.32] until January 15, 2004. Creditor C is similarly prohibited from refinancing any ▸high-cost mortgage◂[loan subject to § 1026.32] to that borrower into another until March 1, 2004. (The limitations of § 1026.34(a)(3) no longer apply to Creditor B after Creditor C refinanced the January 2003 loan and Creditor B ceased to hold or service the loan.)
1.
2.
3.
4.
5.
1. * * *
2.
1.
1.
1.
i.
ii.
iii.
iv.
v.
vi.
▸
1.
1.
2.
3.
1.
2.
1.
2.
1.
1. An example of an action that constitutes steering would be when a creditor repeatedly highlights or otherwise distinguishes the same counselor in the notices the creditor provides to consumers pursuant to § 1026.34(a)(5)(vii).
2. Section 1026.34(a)(5)(vi) does not prohibit a creditor from providing a consumer with objective information related to counselors or counseling organizations in response to a consumer's inquiry. An example of an action that would not constitute steering would be when a consumer asks the creditor for information about the fees charged by a counselor, and the creditor responds by providing the consumer information about fees charged by the counselor to other consumers that previously obtained counseling pursuant to § 1026.34(a)(5).
1.
1.
2.
ii. A creditor or mortgage broker does not “recommend or encourage” default if the creditor or mortgage broker advises a consumer, in good faith, to stop payment on an existing loan that is intended to be paid prior to the loan entering into default by the proceeds of a high-cost mortgage upon the consummation of that high-cost mortgage, if the consummation is delayed for reasons outside the control of the creditor or mortgage broker.
1. For purposes of § 1026.34(a)(8), in connection with an open-end credit plan, the amount of the payment past due is the required minimum periodic payment as provided under the terms of the open-end credit agreement.
1. Section 1026.34(a)(8)(iii) prohibits the pyramiding of late fees or charges in connection with a high-cost mortgage payment. For example, assume that a consumer's regular periodic payment of $500 is due on the 1st of each month. On August 25, the consumer makes a $500 payment which was due on August 1, and as a result, a $10 late charge is assessed. On September 1, the consumer makes another $500 payment for the regular periodic payment due on September 1, but does not pay the $10 late charge assessed on the August payment. Under § 1026.34(a)(8)(iii), it is impermissible to allocate $10 of the consumer's September 1 payment to cover the late charge, such that the September payment becomes delinquent. In short, because the $500 payment made on September 1 is a full payment for the applicable period and is paid by its due date or within any applicable grace period, no late charge may be imposed on the account in connection with the September payment.
1. Under § 1026.34(a)(8)(iv), if a consumer fails to make one or more required payments and then resumes making payments but fails to bring the account current, it is permissible, if permitted by the terms of the loan contract or open-end credit agreement, to apply the consumer's payments first to the past due payment(s) and to impose a late charge on each subsequent required payment until the account is brought current. To illustrate: Assume that a consumer's regular periodic payment of $500 is due on the 1st of each month, or before the expiration of a 15-day grace period. Also assume that the consumer fails to make a timely installment payment by August 1 (or within the applicable grace period), and a $10 late charge therefore is imposed. The consumer resumes making monthly payments on September 1. Under § 1026.34(a)(8)(iv), if permitted by the terms of the loan contract, the creditor may apply the $500 payment made on September 1 to satisfy the missed $500 payment that was due on August 1. If the consumer makes no other payment prior to the end of the grace period for the payment that was due on September 1, the creditor may also impose a $10 late fee for the payment that was due on September 1.
1.
2.
1. ▸
i. The creditor structures a loan that would otherwise be a high-cost mortgage as two loans, for example, to divide the loan fees in order to avoid the points and fees threshold for high-cost mortgages in § 1026.32(a)(1)(ii).
ii. The creditor structures a high-cost mortgage as an open-end home-equity line of credit that is in fact a closed-end home-equity loan in order to evade the requirement under § 1026.32(b)(1) to include loan originator compensation in the points and fees calculation for closed-end mortgage loans.
2. ◂
▸
1.
2.
3.
4.
1. See comments 34(a)(5)(vi)-1 and -2 for guidance concerning steering.
1.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of proposed rulemaking (NPRM).
PHMSA proposes to amend the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the Hazardous Materials Regulations with recent changes made to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations and subsequently address a petition for rulemaking.
Comments must be received by October 15, 2012.
You may submit comments by any of the following methods:
Michael Stevens, Office of Hazardous Materials Standards or Vincent Babich, International Standards, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., 2nd Floor, Washington, DC, 20590-0001.
PHMSA has initiated a rulemaking project to maintain alignment with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. This rulemaking project is part of our ongoing biennial process to harmonize the Hazardous Materials Regulations (HMR; 49 CFR parts 171 to 180) with international regulations and standards.
Federal law and policy strongly favor the harmonization of domestic and international standards for hazardous materials transportation. The Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
Harmonization facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements for transportation of hazardous materials to and from the United States and becomes increasingly important as the volume of hazardous materials transported in international commerce grows. By facilitating compliance, harmonization also tends to enhance safety for international movements, but only if the international standards themselves provide an appropriate level of safety. To that end, PHMSA actively participates in the development of international standards for the transportation of hazardous materials, frequently advocating the adoption in international standards of particular HMR requirements.
When considering the adoption of international standards under the HMR, we review and consider each amendment on its own merit, on the basis of its overall impact on transportation safety, and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without diminishing the level of safety currently provided by the HMR and without imposing undue burdens on the regulated community.
This NPRM proposes to amend the HMR to maintain alignment with various international standards. The following are some of the more noteworthy proposals in this NPRM:
•
If the amendments in this proposed rule are not adopted in the HMR by January 1, 2013, the date most of the international standards above take effect, U.S. companies, including numerous small entities competing in foreign markets, would be at an economic disadvantage. These companies would be forced to comply with a dual system of regulations. The amendments proposed in this rulemaking are intended to avoid this result.
•
These amendments will allow additional flexibility to the regulated community with respect to the material of construction authorized for such packages and types of packages authorized, without compromising safety.
•
These revisions to the vessel stowage requirements in column 10 of the HMT are proposed to eliminate redundant codes, align with modifications to the IMDG Code and to simplify the vessel stowage requirements by limiting the number of stowage options without compromising safety. PHMSA believes these changes will greatly simplify vessel stowage requirements and facilitate international transportation of hazardous materials in commerce by aligning the HMR with the IMDG Code, while continuing to achieve an appropriate level of safety.
•
FBCs provide shippers the opportunity to utilize a reusable packaging for bulk shipments of certain authorized low-hazard commodities. The associated design-type testing requirements ensure a high level of packaging integrity, and experience with such packagings in international transportation has verified the safety of these packagings.
•
There is often confusion with regard to the proper classification of chemical under pressure. Currently, these types of products are often incorrectly classified and transported as liquefied gases or shipped under special permits. The addition of packaging requirements specific to chemical under pressure will ensure that an appropriate level of safety is achieved for these unique materials.
•
PHMSA recognizes the importance of establishing a minimum size requirement for the internationally recognized “UN” identification number marking system. Without a minimum size requirement for hazard communication, shippers may mark packages in a format that makes it difficult for first responders to identify the commodity associated with a particular package.
•
If adopted in a final rule, the amendments proposed in this NPRM will result in minimal burdens on the regulated community. The benefits resulting from the adoption of the amendments include enhanced transportation safety resulting from the consistency of domestic and international hazard communication and continued access to foreign markets by U.S. manufacturers of hazardous materials. The majority of amendments in this NPRM should result in cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America.
PHMSA solicits comments on the need for these amendments and others proposed in this NPRM. Specifically, PHMSA requests comments on the benefits and costs of international harmonization, including the impact on safety and any other relevant concerns regarding the amendments proposed in this NPRM. In addition, PHMSA solicits comment from the regulated community
In a final rule published December 21, 1990 (Docket HM-181; 55 FR 52402), the Research and Special Programs Administration (RSPA), the predecessor agency to PHMSA, comprehensively revised the HMR to harmonize U.S. hazardous materials transportation requirements with the UN Model Regulations. The UN Model Regulations constitute a set of recommendations issued by the UNSCOE and the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The UN Model Regulations are amended and updated biennially by the UNSCOE and serve as the basis for national, regional, and international modal regulations, including the IMDG Code and the ICAO Technical Instructions.
Since publication of the 1990 rule, PHMSA has issued nine additional international harmonization rulemakings under Dockets: HM-215A [59 FR 67390]; HM-215B [62 FR 24690]; HM-215C [64 FR 10742]; HM-215D [66 FR 33316]; HM-215E [68 FR 44992]; HM-215G [69 FR 76044]; HM-215I [71 FR 78595]; HM-215J [74 FR 2200]; and HM-215K [76 FR 3308]. These rulemakings were based on biennial updates of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions.
Federal law and policy strongly favor the harmonization of domestic and international standards for hazardous materials transportation. The Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
When considering alignment of the HMR with international standards, we review and evaluate each amendment on its own merit, on the basis of its overall impact on transportation safety, and the on the basis of the economic implications associated with its adoption into the HMR. Our goal is to harmonize without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated community.
Based on this review and evaluation, in this NPRM PHMSA is proposing to revise the HMR to incorporate changes from the 17th Revised Edition of the UN Model Regulations, Amendment 36-12 to the IMDG Code, and the 2013-2014 ICAO Technical Instructions, which become effective January 1, 2013 (The IMDG Code is effective January 1, 2013; however, the previous amendment may continue to be used until January 1, 2014).
In addition, PHMSA proposes to incorporate by reference (see 171.8) the newest editions of various international standards. These standards incorporated by reference are authorized for use, under specific circumstances, in Subpart C of Part 171 of the HMR. This proposed rule is necessary to incorporate revisions to the international standards and, if adopted in the HMR, will be effective January 1, 2013.
If the changes in this proposed rule are not adopted by January 1, 2013, U.S. companies, including numerous small entities competing in foreign markets, would be at an economic disadvantage because these companies would be forced to comply with a dual system of regulations (specifically, the U.S. HMR, UN Model Regulations, and ICAO Technical Instructions). As previously noted, the changes to the international standards will take effect on January 1, 2013. Therefore, it is essential that a final rule incorporating these standards by reference be published no later than December 31, 2012 with an effective date of January 1, 2013. To this end, if it appears a final rule under this docket will not be published prior to January 1, 2013, PHMSA will publish a bridging document in the form of an interim final rule to amend the HMR by incorporating the 17th Revised Edition of the UN Recommendations and the 2013-2014 ICAO Technical Instructions.
With regard to Amendment 36-12 of the IMDG Code, the International Maritime Organization approved an implementation date of January 1, 2014. The current edition of the IMDG Code (Amendment 35-10) remains in effect through 2013 and, therefore, the newest version of the IMDG Code will not be included in any bridging document. The proposed incorporation by reference of the newest edition of the IMDG Code and all other changes proposed in this NPRM would be addressed in a subsequent final rule also under this Docket, PHMSA-2012-0027 (HM-215L). Accordingly, any interim final rule will only incorporate by reference editions of the international standards that become effective on January 1, 2013.
In addition to various revisions of the HMT and special provisions, in this NPRM, PHMSA is proposing the following amendments to harmonize the HMR with the most recent revisions to the UN Model Regulations, ICAO Technical Instructions, and the IMDG Code:
Manufacturers in the United Kingdom, the United States, Australia, Canada, and other countries are supplying pressurized products contained and transported in gas cylinders. These products are liquids or solids such as adhesives, coatings, and cleaners combined with a gas or gas mixture in pressure receptacles under sufficient pressure to expel the contents. These mixtures are typically expelled from the pressurized cylinders as foams, streams, or thick sprays.
Currently the HMR does not address liquids or solids transported under pressure. A typical product that would meet this description is a combination of a propellant (gas phase) and a liquid or solid component. Accordingly, the term liquefied gas does not correctly identify the contents of the container, nor can the material accurately be described by the name of the gas or liquid/solid component alone.
The new entries (UN numbers) and corresponding provisions for “chemical under pressure” address their unique characteristics and ensure the safe transport of such materials. These entries and corresponding requirements were adopted into the 17th Revised Edition of the UN Model Regulations. Subsequently, ICAO and IMO adopted
In this NPRM, PHMSA is proposing to revise the HMT to include individual entries for chemical under pressure and incorporate other safety requirements including, but not limited to, quantity and filling limits and packaging and segregation requirements.
In this NPRM, PHMSA proposes amendments to the HMT to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, and passenger and cargo aircraft maximum quantity limits. In addition, PHMSA is proposing to comprehensively revise vessel stowage requirements to align with recent changes adopted into the IMDG Code.
In this NPRM, PHMSA proposes to incorporate by reference the latest editions of various international transport standards including the 2013-2014 ICAO Technical Instructions, Amendment 36-12 of the IMDG Code, and the 17th Revised Edition of the UN Model Regulations. Additionally, we are proposing to update our incorporation by reference of the Canadian Transportation of Dangerous Goods Regulations to include Amendment 8 (SOR/2011-239) dated November 9, 2011; Amendment 9 (SOR/2011-60) dated March 16, 2011; and Amendment 10 (SOR/2011-210) dated October 12, 2011. This incorporation by reference augments the broad reciprocity provided in § 171.12 where the HMR allow the use of the Canadian TDG Regulations under certain conditions when transporting hazardous materials to or from Canada by highway or rail. Finally, PHMSA is proposing the incorporation by reference of new and updated International Standards Organization (ISO) standards.
In this NPRM, PHMSA proposes to incorporate a new packaging definition, operational controls, performance-oriented standards, and testing requirements for Flexible Bulk Containers (FBCs). FBCs are flexible bulk packages with a capacity over the currently authorized maximum volumetric capacity for flexible IBCs, but not exceeding 15 cubic meters. FBCs provide shippers the opportunity to utilize a reusable flexible packaging for bulk shipments of certain low-hazard commodities, all of which are currently authorized in non-specification bulk bins.
The 17th Revised Edition of the UN Model Regulations adopted a performance-oriented standard for flexible bulk container design and testing. PHMSA proposes to harmonize with the internationally recognized definition of FBCs, adopt the same performance-oriented packaging design and testing standards for FBCs, and impose similar operational controls on the use of FBCs in transport. The applicable proposed definitions, operational controls, performance-oriented standards, and testing requirements will be discussed in further detail in the section by section review portion of this NPRM.
In this NPRM, PHMSA proposes modifying the definitions for “Articles, explosive, extremely insensitive (Articles, EEI)” and “Cartridges, blank.” We also propose to replace the definition for “Explosive, extremely insensitive detonating substances (EIDS)” with a new definition for “Explosive, extremely insensitive substances (EIS).” Finally, we propose to add a definition for “Auxiliary explosive component, isolated.” The addition and modification of these definitions will provide consistency with international regulations and clarity when utilizing the UN test series 7 for explosive classification.
Part 173 of the HMR describes the general requirements for shipments and packagings of hazardous materials. Consistent with amendments adopted by the UN Model Regulations, PHMSA proposes to amend various Part 173 packaging requirements to authorize more flexibility when selecting packagings for hazardous materials. These proposed amendments include, but are not limited to, the authorization to use wood as a material of package construction for certain explosives, the authorization to use metals other than steel or aluminum for boxes and drums for certain hazardous materials, and the incorporation of authorizations and specifications for FBCs.
The requirements for vessel stowage are described and specified in § 172.101(k) and HMT entries are assigned appropriate vessel stowage codes and stowage special provisions in column (10) of the HMT. Column (10) is divided into two columns: column (10A) [Vessel stowage] specifies the authorized stowage locations on board cargo and passenger vessels and column (10B) [Other provisions] specifies special stowage and segregation provisions.
In this NPRM, we are proposing to clarify these instructions by revising the vessel stowage location requirements for explosives and reducing the number of explosive stowage categories from 15 to 5 in column (10A) of the HMT. Specifically, explosive stowage categories 6 through 15 will be eliminated, and stowage categories 1 through 5 will be retained and modified. This consolidation of codes is proposed to eliminate redundant codes, align with modifications to the IMDG Code, and simplify the vessel stowage requirements by limiting the number of stowage options without compromising safety.
In addition to the HMT changes related to explosives stowage, in this NPRM PHMSA is proposing modifications to the vessel stowage provisions listed in column (10B) of the HMT. For harmonization with the IMDG Code, PHMSA proposes to incorporate the addition of a new definition for protected from sources of heat and potential or possible sources of ignition (see Section 176.2 of this NPRM for definitions), and subsequently revise and delete various vessel stowage provisions. These changes were developed to eliminate redundant codes, align with revisions to the IMDG Code, and simplify the vessel stowage requirements. By limiting the number of stowage options, we believe it will substantially reduce the complexity of the regulations without compromising safety.
The revisions and consolidations of vessel storage codes in column (10A) and the stowage provisions in (10B) of the HMT are discussed in further detail below. PHMSA believes these changes will greatly simplify vessel stowage requirements and facilitate the seamless international transport of hazardous materials by aligning with the IMDG Code.
Consistent with the various international standards, PHMSA is proposing to add an internationally recognized proper shipping name and identification number for UN3506, Mercury contained in manufactured articles, and the addition of a Division 6.1 (toxic) subsidiary hazard risk to UN2809, Mercury. Data presented to the UN Committee of Experts on the Transport of Dangerous Goods (UNSCOE) in the last biennium indicated the need for assigning a subsidiary risk of Division 6.1 to
This NPRM proposes changes to the HMR based on amendments adopted in the 17th Revised Edition of the UN Model Regulations, the 2013-2014 edition of the ICAO Technical Instructions, and Amendment 36-12 to the IMDG Code. We are not, however, proposing to adopt all the amendments made to the various international standards into the HMR.
In many cases, amendments to the international recommendations and regulations have not been adopted because the framework or structure of the HMR makes adoption unnecessary. In other cases, we have addressed, or will address, the amendments in separate rulemaking proceedings. If we have inadvertently omitted an amendment in this NPRM, we will attempt to include the omission in the final rule. However, our ability to make changes in a final rule is limited by requirements of the Administrative Procedure Act (5 U.S.C. 553). In some instances, we can adopt a provision inadvertently omitted in the NPRM if it is clearly within the scope of changes proposed in the notice. Otherwise, in order to provide opportunity for notice and comment, the change must first be proposed in an NPRM.
One of the goals of this rulemaking is to continue to maintain consistency between the HMR and the international requirements. We are not striving to make the HMR identical to the international regulations but rather to remove or avoid potential barriers to international transportation.
The following is a list of significant amendments to the international regulations that we are not proposing to adopt in this NPRM, with a brief explanation of why the amendment was not included:
The 17th Revised Edition of the UN Model Regulations adopted modifications to the security provisions specified in Chapter 1.4 with regard to “high consequence dangerous goods.” Specifically, these changes address the handling of certain Class 7 radioactive materials. In the 17th Revised Edition the UN adopted a list of transport security thresholds for specific radionuclides in Table 1.4.2 of Chapter 1.4. Materials identified in this table exceeding the transport security thresholds indicated in terabecquerels (TBq) would be subject to additional security requirements such as security training and security plans.
In this NPRM, PHMSA is not proposing the adoption of the changes to the security requirements found in the HMR with regard to high consequence dangerous goods. These amendments to the international recommendations and regulations are not being adopted because the existing safety and security requirements found in Subpart I of Part 172 are consistent with and provide for a level of safety and security equivalent to the revised UN Model Regulations.
On January 11, 2010, PHMSA published an NPRM in the
Subsequently, on April 11, 2012, PHMSA published a notice in the
The HM-224F NPRM and the April 11, 2012 notice, which PHMSA developed in close coordination with the Federal Aviation Administration (FAA), are the latest in a series of actions PHMSA has taken to address the potential risks posed by lithium batteries in transportation. These publications solicit comments on revisions to the HMR and are based on lithium battery provisions in the 16th Revised Edition of the UN Model Regulations and the 2013-2014 ICAO Technical Instructions. Because lithium batteries are addressed in separate battery-specific rulemakings and notices, PHMSA is not proposing amendments pertaining to the transportation of lithium cells and batteries in this NPRM. The docket for the lithium battery rulemaking can be found at
Section 175.33 of the HMR addresses the requirements for notification of pilot-in-command regarding hazardous materials stowed aboard the aircraft. Recent amendments adopted in the upcoming 2013-2014 edition of the ICAO Technical Instructions modify the information required to be given to the pilot-in-command as prescribed in Part 7; 4.1. These modifications include a requirement that the operator of an aircraft transporting hazardous materials provide personnel with responsibilities for operational control of the aircraft with the same information that is required to be provided to the pilot-in-command. In addition, the modifications also include a table of hazardous materials not required to appear on the notification provided to the pilot-in-command. Because better analysis is necessary to assess the regulatory impact of alignment with the ICAO Technical Instructions on this matter, PHMSA is not proposing to adopt the new provisions in this NPRM. However, PHMSA does intend to address these changes in a future rulemaking.
The 17th Revised Edition of the UN Model Regulations adopted guidelines for Competent Authorities to use when issuing approvals for salvage pressure receptacles. These revisions are found in Chapter 1.2, 4.1, 5.4, and 6.2 of the UN Model Regulations. Specifically, these requirements address the packaging, hazard communication, and safe transport of salvage pressure receptacles, also known as salvage cylinders in the United States.
The HMR currently address the packaging, hazard communication, and safe transport of salvage cylinders in § 173.3(d) and do not require approval of the Associate Administrator to do so. PHMSA believes the current salvage cylinder requirements in the HMR provide a sufficient level of safety and adequately address the shipment of damaged and defective cylinders. Therefore, PHMSA is not proposing changes to the current HMR provisions for salvage cylinders in this NPRM.
The 17th Revised Edition of the UN Model Regulations adopted requirements for fireworks classification references. Specifically, a provision was
PHMSA intends to address fireworks-related issues in a separate rulemaking and, therefore, will not address fireworks-related issues in this NPRM. The docket for the fireworks rulemaking can be found at
The ICAO and IMO recently adopted guidance issued to competent authorities regarding when an article or substance can be excluded from meeting the classification of a Class 1 (explosive) material. PHMSA is not adopting the issued guidance in this NPRM because it is classification parameters to be considered by a competent authority and not actual regulatory provisions.
The 17th Revised Edition of the UN Model Regulations revised the authorized packagings used for the transportation of air bag inflators, air bag modules, or seat-belt pretensioners. Specifically, in addition to currently authorized packagings, the UN Model Regulations adopted authorizations for 1N2 and 1D drums, 3B2 jerricans, and 4A, 4B, 4N, and 4H1 boxes.
PHMSA is not addressing the additional packaging authorizations in this rulemaking as these and other related issues were addressed in a separate NPRM. The docket for the air bag inflator, air bag module, and seat-belt pretensioner rulemaking can be found at
A new provision was added to Packing Instruction P203 of the 17th Revised Edition of the UN Model Regulations. The amendment prescribes that the frequency of periodic inspection and test of the pressure relief valves for closed cryogenic receptacles shall not exceed five years.
In this NPRM, PHMSA is not proposing to adopt this amendment. Section 173.316, “Cryogenic Liquids in Cylinders,” and § 173.301, “General Requirements for Shipment of Compressed Gases and Other Hazardous Materials in Cylinders, UN Pressure Receptacles and Spherical Pressure Vessels” do not specify the frequency of tests of pressure relief device systems. The HMR requires testing of these systems in accordance with the Compressed Gas Association's S-1.1, “Pressure Relief Device Standards—Part 1—Cylinders for Compressed Gases” and S-7, “Method for Selecting Pressure Relief Devices for Compressed Gas Mixtures in Cylinders.” PHMSA believes these requirements already provide for an adequate level of safety of pressure relief device systems.
Numerous packing instructions of the ICAO Technical Instructions were revised to consistently provide that for certain liquid hazardous materials, inner packagings must be packed with sufficient absorbent material to absorb the entire contents of the inner packagings.
PHMSA does not intend to adopt these amendments in this NPRM. Rather, we adopted them in a separate rulemaking under docket PHMSA-2007-29364 (HM-231A). For example, in the final rule published in the
Special provision 364 was added to the 17th Revised Edition of the UN Model Regulations that requires limited quantity packages of certain Division 1.4S explosives under the following descriptions “UN 0012 Cartridges for weapons, inert projectile
PHMSA believes that the current requirements for shipments of these articles adequately address the hazards associated with the transport of these limited quantity hazardous materials and, thus, will not be adopting the requirement for these materials as packaged to be capable of passing Test Series 6(d) of Part I of the UN Manual of Tests and Criteria.
In many instances cargo transport units are treated with substances to cool and condition the transport environment inside the transport unit. Occasionally gases presenting a risk of asphyxiation are used as part of this cooling and conditioning process. In this case an accumulation of these gases may present a risk to those handling these cargo transport units in transport.
The 17th Revised Edition of the UN Model Regulations adopted various requirements applicable to packages and cargo transport units containing substances presenting a risk of asphyxiation when used for cooling or conditioning purposes. Requirements adopted internationally include a new marking requirement for both packages and freight containers containing dangerous goods used for cooling and conditioning as well as the requirement to note that a dangerous good is being used as a coolant or conditioner on transport documents. PHMSA believes that the current requirements for shipments of dry ice and other potential coolants adequately address the hazards associated with the use of these hazardous materials as coolants or conditioners and notes that the current provisions of the HMR would not preclude the use of the new marking for domestic or international transport.
The following is a section-by-section review of the amendments proposed in this NPRM:
The “National Technology Transfer and Advancement Act of 1996” directs agencies to use voluntary consensus standards. According to the Office of Management and Budget (OMB), Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” government agencies must use voluntary consensus standards wherever practical in the development of regulations. Agency adoption of industry standards promotes productivity and efficiency in government and industry, expands opportunities for international trade, conserves resources, improves health
To these ends, PHMSA actively participates in the development and updating of consensus standards through representation on more than 20 consensus standard bodies. PHMSA regularly reviews updated consensus standards and considers their merit for inclusion in the HMR.
Section 171.7 provides a listing of all standards incorporated by reference into the HMR. For this rulemaking, we evaluated updated international consensus standards pertaining to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements and determined that the revised standards provide an enhanced level of safety without imposing significant compliance burdens. These standards have a well-established and documented safety history; their adoption will maintain the high safety standard currently achieved under the HMR. Therefore, we propose to update by adding and revising the incorporation by reference materials under the following organizations:
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The entry “ISO 4126-1: Safety valves—Part 1: General requirements, December 15, 1991, First edition” is revised as the entry “ISO 4126-1: Safety valves—Part 1: General requirements/Cor 1, August 2, 2007, Second edition.” The entry “ISO 11117, Gas cylinders—Valve protection caps and valve guards for industrial and medical gas cylinders—Design, construction and tests, First edition, August 1998, (E)” is revised as the entry “ISO 11117:2008/Cor 1:2009 Gas cylinders—Valve protection caps and valve guards—Design, construction and tests, May 5, 2009, Second edition”.
The entries “ISO 4126-7: Safety valves—Part 7: Common data/Cor 1, October 23, 2006, First edition,” and “ISO 13340 Transportable gas cylinders—Cylinders valves for non-refillable cylinders—Specification and prototype testing, April 5, 2001, First edition” are added.
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This section defines terms generally used throughout the HMR that have broad or multi-modal applicability. PHMSA is proposing to add the following defined term based on its adoption in the 17th Revised Edition of the UN Model Regulations:
Currently the HMR do not prescribe requirements for the transport of FBCs. In this NPRM, PHMSA is proposing to adopt various transportation and manufacturing requirements for FBCs. Prior to adoption of such standards, the term “Flexible Bulk Container” must be defined. Therefore in this NPRM we are proposing to adopt the above definition of an FBC based on the definition for FBC adopted in the IMDG Code and 17th Revised Edition of the UN Model Regulations.
Section 172.101 provides instructions for using the Hazardous Materials Table (HMT) and the HMT itself. In this NPRM, PHMSA is proposing to revise the instructional text that precedes the HMT.
Paragraph (c) of § 172.101 describes the information indicated in column 2 of the HMT. Column 2 lists the hazardous materials descriptions and proper shipping names of materials designated as hazardous materials. Paragraph (c)(10) of § 172.101 prescribes how mixtures or solutions not identified specifically by name are described.
In this NPRM, PHMSA proposes to revise § 172.101(c)(10) to incorporate language adopted in the 17th Revised Edition of the UN Model Regulations that states mixtures and solutions must meet the definition of one or more hazard class to be classified as a hazardous material. This change will clarify that for a mixture or solution composed of one or more components that are classified as a hazardous material, the resulting mixture or solution must meet the definition of one or more hazard classes to be classified as a hazardous material.
Paragraph (k) of § 172.101 explains the purpose of column (10) of the HMT and prescribes the vessel stowage and segregation requirements for specific entries in the HMT. Column (10) is divided into two columns: column (10A) [Vessel stowage] specifies the authorized stowage locations on board cargo and passenger vessels and column (10B) [Other provisions] specifies special stowage and segregation provisions.
In this NPRM, we are proposing to modify these instructions by revising the vessel stowage location requirements for explosives and reducing the number of explosive stowage categories from 15 to 5. Specifically, the explosive stowage categories 6 through 15 will be eliminated and stowage categories 1 through 5 will be modified. Changes to the explosive stowage categories are necessary because, as part of this NPRM, PHMSA proposes to remove magazine stowage Types “A,” “C,” and special stowage from Part 176 with the consolidation of authorized explosive stowage categories. The authorized explosive stowage categories will be replaced with a new term of art “Closed cargo transport units for Class 1 (explosives).” Included in this definition are freight containers or transport vehicles that are structurally serviceable in accordance with
In this NPRM, PHMSA is proposing to amend the HMT. Readers should review all changes for a complete understanding of the amendments. For purposes of the Government Printing Office's typesetting procedures, proposed changes to the HMT appear under three sections of the Table, “remove,” “add,” and “revise.” Certain entries in the HMT, such as those with revisions to the proper shipping names, appear as a “remove” and “add.” Proposed amendments to the HMT include the following:
This new HMT entry is a result of the division of the proper shipping name Iodine monochloride into two authorized proper shipping names; one for the liquid state of the commodity and another for the solid state. Solid shipments of Iodine monochloride remain assigned to UN1792.
This new HMT entry is intended to cover capacitors with an energy storage capacity greater than 0.3 Wh. Capacitors are assigned as a Class 9 miscellaneous hazardous material and measures required to prevent short circuit are provided in special provision 361.
The “Chemical under pressure. n.o.s.” HMT entries are added to address shipments of liquids or solids (e.g., adhesives, coatings, and cleaners) combined with a gas or gas mixtures utilized to expel the contents from pressure vessels. The primary hazard class for these shipments is determined by the hazard presented by the propellant and any subsidiary risk is determined by the properties of the liquid or solid under pressure. Toxic gases are not permitted as propellants.
This new entry was created to separately address manufactured articles containing mercury. The international community provided an exception from regulation for instruments and articles containing not more than 1 kg of mercury, when transported by means other than aircraft. PHMSA is unable to adopt a comparable exception as the reportable quantity for mercury is 0.454 kg (1.00 lbs.), but does propose to revise the current exception authorized in § 173.164(e) for shipments containing less than 0.454 kg (1.00 pound) to include transportation by vessel.
These entries are proposed for removal from the HMT due to their similarity to UN3488 and UN3489 respectfully. The sole difference between these entries is the order of subsidiary risks, which does not affect the classification and transport conditions applied to shipments of these substances. As a result, PHMSA proposes to remove identification numbers UN3492 and UN3493 to avoid confusing shippers in determining which identification numbers to use.
Section 172.101(b) describes column (1) of the HMT and the associated symbols that may be indicated in the column. In accordance with § 172.101(b), the symbol “G” identifies proper shipping names for which one or more technical names of the hazardous material must be entered in parentheses in association with the basic description on a shipping paper. In this NPRM, PHMSA proposes to add a “G” to column (1) for “UN1707, Thallium compounds, n.o.s.” The addition of a “G” to this entry will provide notification of the technical name of this toxic material and thus aid emergency responders with providing an appropriate response.
Section 172.101(c) describes column (2) of the HMT and the requirements for hazardous materials descriptions and proper shipping names. Among other requirements, in accordance with § 172.101(c)(1), proper shipping names indicated in column (2) of the HMT may be used in the singular or the plural form interchangeably. Regardless, in this NPRM, PHMSA is revising several entries in the HMT to remove the plural ending letter “s” to provide continuity with the internationally accepted proper shipping names. Specifically, PHMSA proposes to remove the letter “s” from: UN1107, Amyl chlorides; UN1111, Amyl mercaptans; UN1113, Amyl nitrites; and, UN2347, Butyl Mercaptans.
Generally the physical state (solid or liquid) appears before the hazard characteristics (toxic, flammable, etc.) in the sequence of wording used in proper shipping names specified in column (2) of the HMT. In some instances, the hazard characteristics are indicated before the physical state. In this NPRM, PHMSA is proposing changes to several proper shipping names to indicate the physical state before the hazard characteristics for consistency in formatting.
Current proper shipping names:
Proposed proper shipping names:
Currently, the HMT includes the entry “Toxic, liquids, organic, n.o.s., UN2810” with the proper shipping name indicated in column (2) that includes a comma between the words “toxic” and “liquid.” This is not
A new proper shipping name “Cartridges for tools, blank” is proposed to be assigned to identification number UN0014. This proper shipping name more appropriately describes industrial blank cartridges currently described as “UN0323, Cartridges, power device” or “ORM-D or ORM-D-AIR, Cartridges, power device
The proper shipping name for “UN1305, Vinyltrichlorosilane, stabilized” is amended by removing the term “stabilized” for consistency with the Dangerous Goods Lists of the various international standards and the HMT of the HMR. The proposed proper shipping name for UN1305 is “Vinyltrichlorosilane.”
The 17th Revised Edition of the UN Model Regulations modified the qualifying text (text in italics) for UN Nos. 3381-3390 and UN Nos. 3488-3491. The proposed changes to these entries' qualifying or modifying text in italics would change the wording from “with an inhalation toxicity lower than or equal to” to “with an LC50 lower than or equal to”. The intent of this terminology change is to better identify the criteria used to determine the proper classification of these substances.
The entry “
Section 172.101(e) describes Column (4) of the HMT and the designation of the identification number to each proper shipping name. With the proposed addition of a separate identification number (UN3506) for the description “Mercury contained in manufactured articles,” PHMSA proposes to remove the description that is currently assigned to “UN2809, Mercury.”
Section 172.101(g) describes Column (6) of the HMT and the labels required (primary and subsidiary) for specific entries in the HMT. Data presented to the UN Committee of Experts on the Transport of Dangerous Goods in this last biennium indicated a need for the addition of subsidiary risk of Division 6.1 (toxic) to be assigned to “UN2809, Mercury” and to the new entry “UN3506, Mercury contained in manufactured articles.” We note that for air transport, Special provision A192 provides relief from the labeling and documentation requirements of this new subsidiary risk.
In addition to the changes above, data was also presented to the UN Committee of Experts on the Transport of Dangerous Goods that indicated the need for a subsidiary risk of Division 6.1 (toxic) to be assigned to UN2381 Dimethyl disulfide.
PHMSA proposes to make appropriate amendments to the HMT to account for these revisions to the UN Model Regulations.
Section 172.101(h) describes Column (7) of the HMT and the § 172.102(c) Special provisions assigned to specific entries in the HMT. The particular modifications to the entries in the HMT are discussed below. See
Several HMT entries are revised to include bulk special provision B120. Special provision B120 indicates that the material, when offered in conformance with the applicable requirements of Part 178 and general packaging requirements in Part 173, may be offered for transportation in a Flexible Bulk Container. See
In this NPRM, special provision B120 is proposed to be assigned to the following entries:
In this NPRM, new special provision 363 is proposed to be assigned to the following entries:
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The entry for UN1008 Boron trifluoride is assigned new special provision 238. See
With the addition of a Division 6.1 (toxic) subsidiary risk to “UN2381, Dimethyl disulfide,” the portable tank codes and portable tank provisions are proposed to be revised as follows:
See
Review of the “Guiding Principles for the Development of the UN Model Regulations (Guiding Principles)” indicates that in some cases, the portable tank instructions for the transport of Division 4.3 liquid materials are not consistent with the Guiding Principles, and, in other instances, relevant portable tank special provisions were missing or incorrectly assigned. The following changes are proposed with deletions indicated by a strikethrough and additions or replacements shown in bold font.
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Special provisions A100 and A103 are revised to clarify that the weight (mass) limitations specified are net and not gross amounts for secondary lithium batteries. See
Special provision A192 is added to note that regardless of the Division 6.1 (toxic) subsidiary risk indicated in the HMT, the toxic subsidiary risk label and an indication of the subsidiary risk on the shipping paper are not required for manufactured articles containing less than 0.454 kg (1.00 pound) of mercury. This special provision is assigned to the entry “UN3506, Mercury contained in manufactured articles.”
Special provision A200 is added to require that certain articles may not be transported in passenger baggage and are to be shipped as cargo when transported via aircraft. Under certain circumstances, the articles affected by this special provision may be excepted from the requirements of the HMR. When these articles are not subject to the regulations, there is the potential for them to be inappropriately carried aboard an aircraft. In response to this safety concern, the ICAO Technical Instructions were revised to clarify that when transported by aircraft, these articles, regardless of whether they are otherwise excepted from the regulations, must be transported as cargo and may not be carried onboard an aircraft by passengers or
This special provision is assigned to the following entries: “UN3166, Engines, internal combustion
Special provision W10 is assigned to “UN3486, Calcium hypochlorite mixture, dry, corrosive
Section 172.101(j) describes Column (9) of the HMT and the quantity limitations for specific entries in the HMT. Furthermore, Columns (9A) and (9B) specify the maximum quantities that may be offered for transportation in one package by passenger-carrying aircraft or passenger-carrying rail car (Column (9A)) or by cargo-only aircraft (Column (9B)). Unless otherwise indicated the quantity limitations shown in column (9) of the HMT are net. PHMSA proposes to remove the gross weight indicator in columns (9A) (if authorized previously) and (9B) for the following battery entries. The quantity limit for these entries should be based on the weight of the battery or batteries and not the weight of the battery or batteries plus the packaging (i.e., the package).
PHMSA is proposing to revise column (9A) to forbid several entries previously authorized for shipment on passenger-carrying aircraft or passenger-carrying rail to harmonize with changes to the ICAO Technical Instructions. The following entries would now be forbidden on passenger-carrying aircraft or passenger-carrying rail.
Quantity limits of 450 L for “UN3334, Aviation regulated liquid, n.o.s.” and 400 kg for “UN3335, Aviation regulated solid, n.o.s.” are proposed for both columns (9A) and (9B). Previously, there was no limit to the amount authorized to be shipped in one package. These new quantity limits are consistent with authorized quantity limits found in the ICAO Technical Instructions.
Section 172.101(k) explains the purpose of column (10) of the HMT and prescribes the vessel stowage and segregation requirements for specific entries in the HMT. Column (10) is divided into two columns: column (10A) [Vessel stowage] specifies the authorized stowage locations on board cargo and passenger vessels and column (10B) [Other provisions] specifies special stowage and segregation provisions.
PHMSA is proposing to simplify the number of vessel stowage locations for shipments of Class 1 explosive materials to harmonize with recently adopted vessel explosive stowage categories in the IMDG Code. Currently, there are 15 possible stowage location codes available for assignment to column (10A) for explosive shipments. Recent changes in the IMDG Code have reduced the number of available explosive stowage location codes to five. This consolidation of codes was accomplished to reduce the complexity of the regulations without compromising safety.
The International Maritime Organization (IMO) determined that the term “magazine” was no longer necessary and the magazine concept could be incorporated into a broader definition for closed cargo transport units for Class 1 (explosives) material. In general, a magazine used to store and transport explosives is equivalent to a closed cargo transport unit with a wooden floor. A magazine type A has additional wooden walls, or walls covered with wooden pallets, and is currently only assigned to 7 entries in the HMT. A magazine type C is currently defined by a minimum distance to the ship's side of 2.4 m (8 feet). Proposed requirements to load Class 1 closed cargo transport units a minimum distance of 2.4 m (8 feet) from the ship's side wall remove the need for specific stowage category references to magazine stowage type C. The IMO, taking into account the properties of various classes and divisions of explosives, has determined that only 1.4S, 1.4G, 1.4D, and 1.4C explosives are acceptable on passenger ships. PHMSA agrees. Therefore, PHMSA has removed the majority of Class 1 stowage location codes and revised the remaining codes. The codes proposed for each Class 1 entry are grouped by proposed stowage code (01, 02, 03, 04, or 05) as follows:
Taking into account the properties of various classes and divisions of explosives, the IMO determined new stowage category assignments as follows:
PHMSA agrees with the assignments and, in particular, agrees that only 1.4S, 1.4G, 1.4D, and 1.4C explosives are acceptable on passenger ships.
Column (10A) in the HMT is revised to read Stowage Category 01 for the following proper shipping names and corresponding identification numbers:
Column (10A) in the HMT is revised to read Stowage Category 02 for the following proper shipping names and corresponding identification numbers:
Column (10A) in the HMT is revised to read Stowage Category 03 for the following proper shipping names and corresponding identification numbers:
Column (10A) in the HMT is revised to read Stowage Category 04 for the following proper shipping names and corresponding identification numbers:
Column (10A) in the HMT is revised to read Stowage Category 05 for the following proper shipping names and corresponding identification numbers:
Section 172.101(k) describes Column (10) of the HMT and the vessel stowage requirements for specific entries in the HMT. Furthermore, column (10B) [Other provisions] specifies codes for stowage requirements for specific hazardous materials. The meaning of each code in Column (10B) is set forth in § 176.84 of this subchapter.
Vessel shipments of Class 1 explosives are currently required to be stored away from all sources of heat including steam pipes, heating coils, sparks, and flame in accordance with § 176.116(a). In addition to this general provision in § 176.116, several vessel stowage codes in column (10B) make reference to shading or stowing away from heat. To harmonize with the IMDG Code, reduce the number of redundant vessel stowage codes, and incorporate the addition of a new definition for protected from sources of heat (see Section 176.2 of this NPRM for definition) PHMSA proposes to delete vessel stowage codes 50 and 48 and replace all references to these codes with stowage code 25. See
The following proper shipping names and corresponding identification numbers will have stowage code 48 replaced with stowage code 25 in Column (10B) in the HMT.
The following proper shipping names and corresponding identification numbers will have stowage code 19 replaced with stowage code 25 in Column (10B) in the HMT if stowage code 25 is not currently listed in Column (10B). If the proper shipping name already is currently assigned both stowage code 19 and 25; stowage code 19 will be deleted.
We also propose to assign stowage code 25 to every Class 1 explosive table entry to indicate these materials must be protected from sources of heat in accordance with the new proposed definition of “protected from sources of heat” in § 176.2. See
Stowage code 50 is currently not assigned to any HMT entries and is being proposed for deletion in this NPRM.
PHMSA proposes to revise stowage code 128 to account for a citation change in the IMDG Code. The proposed new text of stowage code 128 is “stow in accordance with the IMDG Code, Sub-section 7.6.2.7.2 (incorporated by reference; see § 171.7 of this subchapter).”
PHMSA proposes to delete stowage codes 7E, 8E, and 20E. The proposed reduction in the number of vessel stowage categories in column (10A) makes these codes unnecessary and any applicable stowage requirements are covered by the requirements of the applied code in column (10A). Consequently, we propose to remove stowage codes 7E, 8E, or 20E from the following entries, as applicable:
The following proper shipping names and corresponding identification numbers will have stowage code 7E removed from column (10B) of the HMT.
The following proper shipping names and corresponding identification numbers will have stowage code 8E removed from column (10B) of the HMT.
The following proper shipping names and corresponding identification numbers will have stowage code 20E removed from column (10B) of the HMT.
During review of the explosive stowage codes it was noted that stowage code 1E was assigned to UN0504 1H-Tetrazole and UN0502 Rockets, with inert head. Stowage code 1E was removed in a final rule published on June 21, 2001, under Docket Number RSPA-2000-7702 (HM-215D) [66 FR 33316] entitled, “Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions” and, in this NPRM, PHMSA proposes to amend the listings for these two entries by removing these two codes whose requirements have been captured by other vessel stowage provisions.
Section 172.102 lists special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. PHMSA is proposing the following revisions to the § 172.102, Special provisions:
Special provision 47 provides classification exceptions for mixtures of solids and flammable liquids. In this NPRM, PHMSA proposes to revise special provision 47 to clarify that the requirement that each packaging must correspond with a design type that has passed a leakproofness test at the Packing Group II level applies only to single packagings.
Special provision 48 provides classification exceptions for mixtures of solids and toxic liquids. In this NPRM, PHMSA proposes to revise special provision 47 to clarify that the requirement that each packaging must correspond with a design type that has passed a leakproofness test at the Packing Group II level applies only to single packagings.
Special provision 49 provides classification exceptions for mixtures of solids and corrosive liquids. In this NPRM, PHMSA proposes to revise special provision 49 to clarify that the requirement that each packaging must correspond with a design type that has passed a leakproofness test at the Packing Group II level applies only to single packagings.
In a NPRM published in the
Consequences of the removal of § 172.102(c)(1) Special provision 101 in 2006 may have resulted in
Special provision 118 states that materials listing this special provision may not be transported under the provisions of Division 4.1 unless specifically authorized by the Associate Administrator. In the UN Model Regulations the corresponding special provision, SP 272, contained a note that the special provision referred to UN0143. This special provision in the UN Model Regulations has been revised to indicate that the special provision applies to both UN0143 and UN0150, as appropriate. To maintain consistency with the UN Model Regulations, in this NPRM PHMSA proposes to adopt this editorial note and revise special provision 118 by adding the language “(see UN0143 or UN0150 as appropriate)” following the existing text.
Special provision 134 would be revised to note that this provision also applies to equipment powered by wet batteries or sodium batteries that are transported with these batteries installed. This is a minor clarification of the original intent of this special provision.
Special provision 155 states that Fish meal or fish scrap may not be transported if the temperature at the time of loading either exceeds 35 °C (95 °F), or exceeds 5 °C (9 °F) above the ambient temperature, whichever is higher.
In this NPRM PHMSA proposes to revise special provision 155 by adding a reference to the new proper shipping name “krill meal.” Krill meal processes similar self-heating hazard characteristics to fish meal and scrap; therefore, application of this special provision is appropriate. This addition will clarify that special provision 155 applies to fish meal and fish scrap as well as krill meal. This revision is a clarification of the existing requirement.
Special provision 237 specifies that “Batteries, dry, containing potassium hydroxide solid,
In this NPRM PHMSA is proposing to add an additional sentence to special provision 237 clarifying the applicability of the provision. Specifically language is added to state that the entry for “Batteries, dry, containing potassium hydroxide solid,
Special provision 238 is added to address neutron radiation detectors. Neutron detection is a key component used in nuclear arms interdiction in addition to other applications such as nuclear reactor monitoring, neutron-based cancer treatments, neutron spallation, nondestructive testing and health physics applications. Most neutron radiation detectors contain boron trifluoride gas, UN1008, which is currently forbidden by passenger and cargo aircraft as noted in Columns (9A) and (9B) of the HMT. Currently, neutron radiation detectors that contain this gas can only be transported by air under the terms of a special permit.
ICAO recently adopted a special provision specifically addressing neutron radiation detectors. The recently adopted special provision A191 permits, under certain conditions the transportation by cargo aircraft of neutron radiation detectors that contain boron trifluoride. These conditions include quantity of gas limitations, construction and packaging specifications. The special provision also provides that under certain conditions these neutron radiation detectors containing not more than 1 gram of boron trifluoride gas are not otherwise subject to the ICAO Technical Instructions.
PHMSA granted a special permit, for the transportation by all modes, of certain neutron radiation detectors containing boron trifluoride gas. The limitations set forth in Special Provision A191 of the ICAO Technical Instructions do not exceed any limitations of the special permit and, therefore, PHMSA proposes to adopt and apply them to all modes of transportation except passenger-carrying aircraft by incorporating them into § 172.102(c)(1), Special provision 238. Specifically, the special provision will provide packaging requirements (including pressure limitations), quantities permitted, and package construction requirements for radiation detectors containing non-pressurized boron trifluoride gas in excess of 1 gram. The special provision also provides additional exceptions from the HMR based on the transport mode and other conditions. The special provision is applicable to the entry “UN1008, Boron trifluoride” in the HMT. PHMSA believes the adoption of this special provision provides an adequate level of safety for the transportation of these items, while providing flexibility and without the need to obtain a special permit.
A new special provision 328 is added to clarify that when lithium cells or batteries are contained in the fuel cell system, the item must be described
A new Special Provision 360 would be added and assigned to UN3091, “Lithium batteries, contained in equipment” to clarify that vehicles powered only by lithium batteries must be assigned to identification number UN3071, “Battery powered vehicle”.
A new special provision 361 is added to clarify that certain capacitors with limited energy storage capability are excepted from the HMR. Specifically, the special provision will state that capacitors with an energy storage capacity of 0.3 Wh or less are not subject to the HMR. Furthermore this special provision will define energy storage capacity as the energy held by a capacitor, as calculated using the nominal voltage and capacitance.
Proposed § 173.176 provides that capacitors not installed in equipment must be transported in an uncharged state and capacitors installed in equipment must be transported in either an uncharged state or protected against short circuit. Certain types of capacitors such as asymmetrical capacitors are designed to maintain a terminal voltage. This special provision will also clarify the entry UN3499 does not apply to these capacitors. This special provision will be applied to the proposed HMT entry UN3499, “Capacitor,
A new special provision 362 is added to specify when a material can be considered a chemical under pressure. Specifically, the special provision will state that classification of these materials is to be based on hazard characteristics of the components in the propellant, the liquid, or the solid forms. Further, this special provision will detail the appropriate primary and subsidiary hazard classes to be assigned to chemicals under pressure. Special provision 362 would be added and assigned to the following HMT entries: UN3500, Chemical under pressure, n.o.s.; UN3501, Chemical under pressure, flammable, n.o.s.; UN3503, Chemical under pressure, corrosive, n.o.s.; UN3502, Chemical under pressure, toxic n.o.s.; UN3504, Chemical under pressure, flammable, toxic, n.o.s.; and UN3505, Chemical under pressure, flammable, corrosive, n.o.s.
Prior to the publication of the 17th Revised Edition of the UN Model Regulations, the transport of large amounts of fuel in machinery was not specifically addressed in international transport regulations. In the most recent biennium of the UNSCOE, some experts expressed concerns about the transport of large amounts of fuel in machinery. This concern lead the international community to adopt in The 17th Revised Edition of the UN Model Regulations a special provision associated with fuel-related Class 3 entries.
Special Provision 363, as adopted in the UN Model Regulations, requires an article that contains fuel in excess of the limited quantity authorized amount and is ineligible to be described as Dangerous Goods in Machinery or Apparatus, UN3363, to conform to several general provisions to avoid being subject to the remainder of the HMR. Shipments utilizing this special provision require that the means of containment be in compliance with the construction requirements of the competent authority, all valves or openings in the means of containment containing dangerous goods shall be closed during transport, the machinery or equipment shall be loaded in an orientation to prevent leakage, and: (1) If the means of containment has a capacity of not more than 450 liters, one label would be required; (2) if the means of containment has a capacity greater than 450 liters but not more than 1,500 liters, it must be labeled on all four sides; or (3) if the means of containment has a capacity greater than 1,500 liters, it must be placarded on each side and each end. Additionally, shipping papers are required for such articles.
In this NPRM, PHMSA proposes to adopt Special Provision 363 modeled on the corresponding special provision adopted in the UN Model Regulations. This special provision would be assigned to the following HMT entries for transportation by vessel: UN1202, Gas oil
While PHMSA generally agrees with the concept of addressing machinery or apparatus containing flammable liquid fuels in amounts that exceed the authorized limited quantity amounts and are ineligible to be described as UN3363, Dangerous goods in machinery or apparatus, we do have concerns related to the potential impact that adopting this special provision would have on shippers of generators and other similar articles that may currently be described as UN3166, Engines internal combustion, and are not subject to fuel limitations when transported by highway or rail. Conversely, PHMSA is soliciting public comment regarding any potential negative impact on the efficient and seamless flow of international commerce if we choose not to adopt Special Provision 363 in a final rule.
With the official adoption of a new proper shipping name UN3506 Mercury contained in manufactured articles in the 17th Revised Edition of the UN Model Regulations to address manufactured articles containing mercury, PHMSA proposes to add a new special provision 365 stating that manufactured instruments and articles containing mercury should reference UN3506. This special provision will be applied to UN2809 Mercury.
Special Provision A60 permits UN2014, Hydrogen peroxide, aqueous solution, to be transported in excepted quantities provided a comparative fire test between packages containing the solution and identical packages containing water demonstrated no difference in the burning rate. The likelihood of finding discernible differences with more accurate test equipment used today is much greater than it would have been with equipment used when the test
In this NPRM we are proposing to harmonize with the ICAO Technical Instructions with regard to the comparative fire test for Hydrogen peroxide, aqueous solution. Special provision A60 is revised accordingly.
Special Provision A100 states that primary (non-rechargeable) lithium batteries and cells are forbidden for transport aboard passenger-carrying aircraft and secondary (rechargeable) lithium batteries and cells are authorized aboard passenger-carrying aircraft in packages that do not exceed a gross weight of 5 kg.
In this NPRM special provision A100 is revised to clarify the weight limitations for secondary lithium batteries are net and not gross quantities. There are some combinations of authorized battery packagings that contribute significantly towards the gross weight of the finished package. The intent of this proposed change is to indicate that the quantity limits for secondary lithium battery shipments aboard passenger-carrying aircraft are to be based on the actual weight of the batteries in each individual package and not the weight of the completed package.
Special Provision A103 specifies that lithium batteries contained in equipment is authorized aboard passenger carrying aircraft if the gross weight of the inner package of secondary lithium batteries or cells packed with the equipment does not exceed 5 kg (11 pounds).
In this NPRM special provision A103 is revised to clarify the weight limitations are net and not gross quantities. There are some combinations of authorized battery packagings that contribute significantly towards the gross weight of the finished package. The intent of this proposed change is to indicate that the quantity limits for secondary lithium battery shipments aboard passenger carry aircraft are to be based on the actual weight of the batteries in each individual package and not the weight of the completed package.
In this NPRM, we are proposing to add a new special provision, A189, which will be assigned to the HMT entry “UN2209, Formaldehyde solutions,
In this NPRM, we are proposing to add language detailing how differing percentage of Formaldehyde solutions are to be regulated in the new special provision A189. This special provision will be applied to UN3334, Aviation regulated liquid, n.o.s. and NA3082, Other regulated substances, liquid, n.o.s.
A new special provision, A192, is added noting that regardless of the Division 6.1 subsidiary hazard indicated in the HMT, the poison subsidiary risk label and an indication of this subsidiary risk on the shipping paper are not required for manufactured articles containing less than 0.45 kg (1 pound) of mercury. This provision aligns with the decision of the UN Sub-Committee to ensure that transport of such articles, particularly by air, is not impeded due to mercury's revised classification.
As previously discussed, a new special provision, A200, is added stating the entries assigned this special provision must be transported as cargo when transported by aircraft and cannot be carried onboard an aircraft by passengers or crewmembers either in or as carry-on baggage, checked baggage, or on their person unless specifically excepted by § 175.10, “Exceptions for Passengers, Crewmembers, and Air Operators.” This special provision would be assigned to articles and will be applied to: UN3166, Engines, internal combustion
A new special provision B120 is added to specify the use of FBCs conforming to the requirements in Subpart R and Subpart S of part 178 of this subchapter are permitted. The special provision is applicable to the following entries:
FBCs must conform to the performance-oriented construction standards and testing criteria in new subparts R and S of part 178. In addition, shipments of FBCs must be prepared and otherwise conform to the general requirements for bulk packages in subpart B of part 173 and the proposed new § 173.37.
In a final rule published in the
A new special provision, TP39, is added and assigned to HMT entry“UN2381, Dimethyl disulfide.” This special provision indicates that portable tank instruction T4 may continue to be applied until December 31, 2018. This will provide more time for portable tank transporters to transition their current fleets.
A new special provision TP40 is added and assigned to HMT entries “UN3500, Chemical under pressure, n.o.s.; UN3501, Chemical under pressure, flammable, n.o.s.; UN3503, Chemical under pressure, corrosive, n.o.s., UN3503; UN3502, Chemical under pressure, toxic n.o.s.; UN3504, Chemical under pressure, flammable, toxic, n.o.s.; and UN3505, Chemical under pressure, flammable, corrosive, n.o.s.” The special provision indicates that the portable tanks must not be transported when connected with spray application equipment. This will provide an additional measure preventing inadvertent release of hazardous materials in transport.
A new Special provision TP41 is added and assigned to HMT entries “UN3148, Water-reactive liquid, n.o.s.,” indicating that the portable tank instruction T9 may continue to be applied until December 31, 2018.
Special provision T50 is revised to note that this provision is applicable to chemicals under pressure as well as liquefied compressed gases. Special provision T50 would be assigned to HMT entries “UN3500, Chemical under pressure, n.o.s.; UN3501, Chemical under pressure, flammable, n.o.s.; UN3503, Chemical under pressure, corrosive, n.o.s., UN3503; UN3502, Chemical under pressure, toxic n.o.s.; UN3504, Chemical under pressure, flammable, toxic, n.o.s.; and UN3505, Chemical under pressure, flammable, corrosive, n.o.s.”
A new special provision W10 is added and assigned to HMT entries “UN3486 Calcium hypochlorite mixture, dry, corrosive
Section 172.202 establishes requirements for shipping descriptions on shipping papers. As part of these shipping paper requirements, in many situations a net or gross quantity of the hazardous materials transported must be included. At the 23rd meeting of the ICAO DGP, the issue of notation of quantities on shipping documents was raised. Specifically, it was noted that some confusion as to whether or not the net quantity or a gross mass is required on the shipping documents on particular shipments, such as limited quantities. At this meeting an amendment to the ICAO Technical Instructions was proposed and adopted designed to clarify what quantities (i.e. net or gross quantity) were required on the transport document for packages containing limited quantities where different hazardous materials are packed together in the same outer packaging.
In this NPRM, PHMSA proposes to adopt a similar provision to the one addressed by the ICAO DGP discussed above. Specifically, PHMSA proposes to add a new paragraph (a)(6)(vii) stating that for shipments containing hazardous materials in limited quantities with a “30 Kg gross” limit in Column (9A) or (9B) of the § 172.101 Hazardous Materials Table and different hazardous materials packed together in the same outer packaging, the net quantity of each hazardous material followed by the gross mass of the completed package should be shown on the shipping paper.
This clarification will address a transport scenario currently not addressed in the HMR thus alleviating confusion regarding the shipping paper requirements of such shipments. Furthermore, this will harmonize the HMR with the ICAO Technical Instructions and avoid shipping paper discrepancies for international shipments.
This section details the general marking requirements for non-bulk packagings. Specifically, this section states what information (proper shipping name and identification number, technical names, consignee's or consignor's name, etc.) must be displayed on the outside of non-bulk packages. While the HMR requires that an identification number, preceded by “UN” or “NA” as appropriate, be marked on the outside of a non-bulk packaging a specific size of this marking is not specified.
In this NPRM PHMSA proposes to add specific size requirements for the “UN” or “NA” markings. As proposed these markings must be marked in characters at least 12 mm (0.47 inches) high, however, packages with a maximum capacity of 30 liters (7.92 gallons) or 30 kg (66 pounds) or less must be marked with characters at least 6 mm (0.2 inches) high and packages having a maximum capacity 5 liters (1.32 gallons) or 5 kg (11 pounds) or less must be marked in a size appropriate for the size of the package.
PHMSA proposes this minimum size marking for the “UN” or “NA” markings to align with newly adopted requirements in the 17th Revised Edition of the UN Model Regulations. PHMSA recognizes the importance of establishing a minimum size requirement for the internationally recognized “UN” identification number marking system. The HMR currently specifies size requirements for the package markings specified in § 178.3(a)(4). Specifically, for package markings, letters and numerals must be at least 12.0 mm (0.47 inches) in height except that for packagings of less than or equal to 30 L (7.9 gallons) capacity for liquids or 30 kg (66 pounds) capacity for solids the height must be at least 6.0 mm (0.2 inches). Without a minimum size requirement for hazard communication, shippers may mark packages in a format that makes it very hard for first responders to identify the commodity associated with a particular package. Therefore in this NPRM, PHMSA proposes to specify a marking size consistent with package marking sizes specified in § 178.3(a)(4) and those adopted in the 17th Revised Edition of the UN Model Regulations.
Section 172.312 details the specific marking requirements for liquid hazardous materials in non-bulk packagings. Paragraph (a) of this section describes scenarios when package orientation arrows must be displayed on the outside of a package. Provided certain criteria are met, paragraph (c) excepts certain shipments from the requirements of paragraph (a) and thus, the requirement to display the package orientation arrows on the package. Currently § 173.312(c)(3) states that when offered or intended for transportation by aircraft, packages
Section 172.604 prescribes emergency response telephone number requirements. Paragraph (d) of this section provides a listing of materials that are excepted from the requirement to provide an emergency response telephone number on a shipping document.
In this NPRM, PHMSA proposes to add “Krill Meal, PGIII” to the list of materials excepted from the emergency response telephone number requirements. Krill meal poses similar hazards to fish scrap and meal; therefore, in this NPRM we are providing Krill meal with the same exception from the emergency response telephone number requirements as fish scrap and meal.
Part 173 of the HMR describes the general requirements for shipments and packagings of hazardous materials. Consistent with amendments adopted by the UN Model Regulations, PHMSA proposes to adopt changes throughout the Part 173 packaging requirements to authorize more flexibility when choosing packages for hazardous materials. Specifically PHMSA proposes to authorize the use of the following packaging types and materials:
The specific packaging requirements for Class 1 explosive materials are specified in § 173.62. In this NPRM PHMSA is proposing to revise § 173.62 to authorize wood as an appropriate material used to construct receptacles, inner and outer intermediate packagings, and intermediate packagings/dividing partitions for certain explosives. Furthermore, in this NPRM PHMSA is proposing to authorize the use of metals other than steel or aluminum in specification packagings, specifically drums (1N1 or 1N2) and boxes (4N), as appropriate. This authorization would not include chlorosilanes under § 173.206 because of corrosion concerns. Otherwise, it authorizes the use of closed head drums where open head drums are generally permitted. PHMSA believes these amendments would provide greater flexibility in packaging while maintaining an equivalent level of safety.
Consistent with amendments adopted by the ICAO Technical Instructions, PHMSA proposes to adopt changes in various sections on Part 173 where certain articles, items, and materials are excepted from the requirements of the subchapter. There is a potential for these excepted articles, items, and materials to be inappropriately carried aboard an aircraft by passengers or crewmembers. The proposed changes will address this concern by clarifying that certain excepted articles, items and materials, identified by ICAO as posing a safety risk, must be transported as cargo and cannot be carried onboard an aircraft by passengers or crewmembers as carry-on baggage, checked baggage, or on their person unless specifically excepted by § 175.10, “Exceptions for Passengers, Crewmembers, and Air Operators.” The amended sections include §§ 173.21, 173.159a, 173.162, 173.164, 173.175, 173.219, and 173.306. For UN3166 and UN3268, Special Provision A200 will be created to communicate this requirement and a reference to special provision A200 would be placed in column 7 of the HMT for these entries.
This section specifies the exceptions for shipment of waste materials including the requirements for waste packages known as “lab packs.” A lab pack, although not specifically defined in § 171.8, is considered a large outer packaging containing small inner packagings that are filled with various compatible laboratory hazardous wastes. Paragraph (b) of this section specifies the authorized inner and outer packagings for lab packs.
In this NPRM, PHMSA proposes to revise paragraph (b)(2)(ii)(a) of this section by adding 1N2 metal drums to the permitted outer packagings currently authorized for a lab pack.
Section 173.21 prescribes materials and packages forbidden for transport. In this NPRM, PHMSA is proposing to correct the IMDG Code section reference to control temperature requirements in § 173.21(f)(3)(ii) from 7.7 to 7.3.7.
Currently, the HMR does not include a section that prescribes general requirements for packaging hazardous materials in Flexible Bulk Containers (FBCs). In this NPRM, PHMSA is proposing such requirements in new § 173.37 in a similar format to the general requirements for other bulk and large packagings (e.g., portable tanks, IBCs, etc.) in subpart B of part 173. This section will include, but not be limited to, requirements addressing the initial use and reuse of FBCs, capacity requirements and general transport conditions. Consistent with the use and reuse requirements of other large and bulk packagings, the general requirements in part 173 complement the construction and manufacture specifications for such bulk packagings in part 178 of the HMR.
In this NPRM, PHMSA is proposing that FBCs may be reused, and must be given a visual examination prior to reuse. Furthermore, the general requirements for FBCs would specify that FBCs must be transported in a conveyance with rigid sides and ends that extend at least two-thirds the height of the FBC, must not be offered for transportation in freight containers, and may not exceed 15 cubic meters in capacity.
Section 173.50 provides definitions for the various divisions of Class 1 (explosives) referenced in Subpart C of Part 173. Paragraph (b) of this section notes that Class 1 (explosives) are divided into six divisions. Division 1.6 is described as an explosive consisting “of extremely insensitive articles that do not have a mass explosive hazard. This division is comprised of articles that contain only extremely insensitive detonating substances and that demonstrate a negligible probability of accidental initiation or propagation.”
In this NPRM PHMSA is proposing to remove the word “detonating” from this definition to align with the revised definition provided in the 17th Revised Edition of the UN Model Regulations.
Section 173.59 provides definitions of explosive terms related to the transport and classification of explosives used throughout subpart C of part 173. These
In April 2010, the United States and the United Kingdom submitted a formal document regarding proposed modifications to the UN test series 7 for consideration by the UN Subcommittee of Experts on the Transport of Dangerous Goods. Test series 7 is used to classify explosives into the appropriate class.
In the 17th Revised Edition of the UN Model Regulations, the proposals presented in the US/UK paper regarding the UN test series 7 were adopted. Among the adopted proposals was the addition of various explosive specific definitions referencing the modifications to the UN test series 7. In this NPRM, we are proposing to revise the various definitions prescribed in § 173.59. Specifically, we propose revising the definition for “Articles, explosive, extremely insensitive (Articles, EEI)” by removing the word “detonating” and adding the words “tools” after “starter pistols” in the definition for “Cartridges, blank.” We also propose to replace the definition for “Explosive, extremely insensitive detonating substances (EIDS)” with a new definition for “Explosive, extremely insensitive substances (EIS).” Lastly, we propose to add a definition for “Auxiliary explosive component, isolated.” The addition of and revisions to these definitions will provide consistency with international regulations and clarity when utilizing the UN test series 7 for explosive classification.
Section 173.62 prescribes the specific packaging requirements for explosives. These packaging requirements stipulate the permitted inner, intermediate, and outer packagings as well as any specific additional packaging information. These packaging requirements are generally aligned with the requirements stipulated in the UN Model Regulations.
In this NPRM, PHMSA is proposing to revise various packaging provisions in the “Table of Packing Methods” in this section to align with changes adopted in the 17th Revised Edition of the UN Model Regulations. The revisions to the authorized packaging methods provide greater flexibility when packaging explosives while retaining an appropriate level of safety. These changes include, but are not limited to, permitting various explosives to be transported in closed head drums in addition to the already permitted removable head drums and adding the option to utilize wooden inner and intermediate packagings in various packaging provisions.
Section 173.63 provides packaging exceptions for specific types of low hazard explosive materials including certain detonators, small arms ammunition and detonating cord. Paragraph (b) of this section prescribes the limited quantity requirements for small arms ammunition and blank cartridges for tools. Specifically, § 173.63(b)(1)(i) authorizes Cartridges, small arms (UN0012), and Cartridges for tools, blank
Section 173.115 prescribes the definitions for Class 2 materials. Paragraph (k) of this section specifies how the oxidizing ability of certain Division 2.2 gases is determined. Currently, the HMR references ISO standards that include test and calculations used to determine the oxidizing ability of certain Division 2.2 gases. The UN Model Regulations and the ICAO Technical Instructions replace references to ISO standards 10156:1996 and 10156-2:2005 with the updated version ISO 10156:2010.
Based on its technical review, PHMSA believes the updated standard provides an adequate level of safety and proposes to reference the standard in this section and add it to the list of IBR materials in § 171.7.
Section 173.121 prescribes the requirements for selection of packing groups for Class 3 flammable liquids. Paragraph (b) of this section describes the criteria for inclusion of viscous Class 3 materials in Packing Group III.
ICAO adopted requirements in the Technical Instructions that increased the quantity of viscous Class 3 flammable liquids permitted reclassification from Packing Group II to Packing Group III from 30 L (7.9 gal) per package to 100 L (26.42 gal) per package when offered for transport by cargo aircraft.
In this NPRM, PHMSA proposes to expand the per package amounts of viscous Class 3 material meeting the requirements in § 173.121(b). The increase will facilitate multi-modal transportation by permitting shipments offered by highway, rail, and cargo-carrying aircraft to utilize the same 100 L criteria.
Provisions contained in the UN Model Regulations, Chapter 2.6, Class 6—Toxic and Infectious Substances, relating to the transportation of medical devices and equipment, have been amended to except medical equipment which has been drained of free liquid from the requirements of the UN Model Regulations. In addition, except for medical devices or equipment being transported for disposal, or medical devices or equipment contaminated with or suspected of contamination with a Category A infectious substance, the UN Model Regulations have been amended to exempt medical devices or equipment potentially contaminated with or containing infectious substances which are being transported for disinfection, cleaning, sterilization, repair or equipment evaluation from all other requirements of the UN Model Regulations, provided they meet certain packaging requirements.
In this NPRM, PHMSA proposes to amend § 173.134, “Class 6, Division 6.2—Definitions and Exceptions” by adopting the additional exemptions for medical devices and equipment.
Section 173.158 prescribes packaging requirements for nitric acid mixtures of varying concentrations. In this NPRM, PHMSA is proposing to revise the list of outer packagings permitted for nitric acid mixtures of varying concentrations.
Specifically, PHMSA proposes to revise paragraph (d)(2) by adding 1N2, 4A, 4B and 4N packagings to the list of authorized outer packagings of combination packages for nitric acid of 90 percent or greater concentration, when offered for transportation or transported by rail, highway, or water, in addition to the packaging options currently authorized.
PHMSA also proposes to revise paragraph (e) of this section pertaining to nitric acid of less than 90 percent concentration, when offered for transportation or transported by rail, highway, or water. Specifically, this paragraph is revised to permit packagings of specification 4A, 4B, or 4N metal boxes for certain nitric acid concentrations.
Further, PHMSA proposes to revise paragraphs (f)(3), (g) and (h) by adding specification 1N2, 4A, 4B and 4N packagings to the list of authorized outer packagings of combination packagings for nitric acid of the following concentrations: (1) Nitric acid of 70 percent or less concentration, when offered for transportation or transported by rail, highway, or water; (2) Nitric acid of more than 70 percent concentration, when offered for transportation or transported by cargo aircraft only; and (3) Nitric acid of less than 70 percent concentration, when offered for transportation in cargo aircraft only.
The addition of these packaging options will increase flexibility for shippers when determining the appropriate packaging for nitric acid mixtures, in addition to the packaging options currently authorized.
Section 173.159a provides exceptions for non-spillable batteries. Paragraph (d) of this section excepts non-spillable batteries from the requirements of the HMR provided certain criteria, including specific packaging requirements and the absence of free-flowing liquid in the battery, are met.
In this NPRM, PHMSA is proposing to clarify paragraph (d) of this section by adding a new subparagraph (b)(3) stating that “for transport by aircraft, must be transported as cargo.” This clarification will align the HMR with the previously discussed changes made to the ICAO TI with regard to the air transport of non-spillable batteries that are excepted from the HMR.
Section 173.160 prescribes packaging requirements for “Bombs, smoke, non-explosive” when shipped without ignition devices. In this NPRM, PHMSA is proposing to revise the list of packagings permitted for “Bombs, smoke, non-explosive” shipped without ignition devices. Specifically, PHMSA proposes to add the authorization to use metal (4A, 4B, and 4N), fiberboard (4G) or solid plastic (4H2) boxes, or metal (1A2, 1B2, and 1N2), plastic (1H2), plywood (1D), or fiber (1G) drums.
Section 173.162 prescribes the packaging requirements for “UN2803, Gallium.” In this NPRM, PHMSA proposes to revise paragraph (a)(1), which authorized combination packagings intended to contain liquids consisting of glass, earthenware, or rigid plastic inner packagings with a maximum net mass of 15 kg (33 pounds) each. Specifically, PHMSA proposes to revise these requirements to permit both open and closed steel, metal, other that steel and aluminium drums (1A1, 1N1, 1N2, 1H1, 3A2 or 3H2) in addition to the packaging options currently authorized.
Further, PHMSA proposes to revise paragraph (a)(2), which authorizes packagings intended to contain liquids consisting of semi-rigid plastic inner packagings of not more than 2.5 kg (5.5 pounds) net capacity each, individually enclosed in a sealed, leak-tight bag of strong puncture-resistant material. Specifically, PHMSA proposes to revise these requirements to permit metal, other than steel or aluminium (4N) boxes; metal, other than steel or aluminium drums (1N1, 1N2); and plastic drums (1H1 or 1H2) in addition to the packaging options currently authorized.
In addition, PHMSA is proposing to clarify paragraph (d) by adding a new subparagraph (b)(3) stating that “for transport by aircraft, must be transported as cargo.” This clarification will align the HMR with the previously discussed changes adopted in the ICAO Technical Instructions regarding the air transport of gallium otherwise excepted from the HMR.
Section 173.164 prescribes the packaging requirements for mercury (metallic and articles containing mercury). In this NPRM, PHMSA proposes to revise paragraph (a)(1), which authorized inner packagings of earthenware, glass or plastic containing not more than 3.5 kg (7.7 pounds) of mercury, or inner packagings that are glass ampoules containing not more than 0.5 kg (1.1 pounds) of mercury, or iron or steel quicksilver flasks containing not more than 35 kg (77 pounds) of mercury. Specifically, PHMSA proposes to revise these requirements to permit steel drums; metal, other that steel and aluminum drums (1A1, 1N1, 1N2) and metal, other than steel or aluminum boxes (4N), in addition to the packaging options currently authorized in paragraphs (a), (b) and (c).
Paragraph (f) is added to provide an exception to the requirements of the HMR for vessel transport of manufactured articles or instruments containing less than 0.45 kg (1.0 pound) of mercury. This exception is inserted to mirror an existing IMDG Code provision and harmonize the requirements for vessel shipments of mercury contained in manufactured articles as much as possible.
In addition, PHMSA is proposing to clarify paragraphs (a)(5), (b), and (c)(2) of this section by adding the phrase “when transported as cargo.” This clarification will align the HMR with the previously discussed changes adopted in the ICAO Technical Instructions regarding the air transport of manufactured articles containing mercury otherwise excepted from the HMR.
Section 173.165 prescribes the transport and packaging requirements for polyester resin kits. In this NPRM, PHMSA is proposing to revise § 173.165 to better align the packaging and other requirements for UN3269, Polyester resin kits with the various international modal standards. These proposed amendments are also intended to correct inconsistencies adopted in a final rule published in the
Section 173.175 prescribes the transport and packaging requirements for permeation devices. Currently, permeation devices containing hazardous materials that are used for calibrating air quality monitoring devices are not subject to the HMR provided they meet specific requirements that include packaging, quantity limitations, testing, and transport controls.
In this NPRM, PHMSA is proposing to add a new paragraph (g) stating that “for transport by aircraft, must be transported as cargo.” This clarification will align the HMR with changes adopted in the ICAO Technical Instructions regarding the air transport of permeation devices that are otherwise excepted from the HMR.
Electric double layer capacitors are devices that store but do not produce electrical energy. They contribute to increased fuel efficiency in many alternative energy solutions such as hybrid vehicles. Some double layer capacitors contain flammable liquid absorbed in a solid with small amounts present as free liquid while others use a liquid electrolyte. Currently, the HMR do not contain specific requirements to address the transport of electric double layer capacitors.
New Section 173.176 addresses electric double layer capacitors and is proposed in this NPRM. If adopted, the section would prescribe the testing, marking, safety, and packaging requirements for electric double layer capacitors with an energy storage capacity greater than 0.3 Wh. PHMSA proposes to incorporate these requirements consistent with the 17th Revised Edition of the UN Model Regulations. The proposed amendments in this NPRM address potential electrical and other hazards arising from the release of hazardous materials during the transportation of these articles.
Section 173.181 prescribes the non-bulk packaging requirements applicable to pyrophoric liquids. Paragraph (b) of this section specifies the specification boxes authorized to package these substances. In this NPRM, PHMSA proposes to revise paragraph (b) by adding packaging authorizations for steel boxes (4A), aluminum boxes (4B), metal boxes, other than steel or aluminum (4N), or fiberboard boxes (4G); steel drums (1A1 or 1A2), aluminum drums (1B1 or 1B2), metal drums, other than steel or aluminum (1N1 or 1N2), plywood drums (1D), or fiber drums (1G); or steel jerricans (3A1 or 3A2) or aluminum jerricans (3B1 or 3B2).
Section 173.183 prescribes the packaging requirements for nitrocellulose base film. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list currently permitted for nitrocellulose base film. Specifically, in this NPRM, PHMSA proposes to add other metal drums (4A2), aluminum jerricans (3B2), and steel, aluminum or other metal (4A, 4B, 4N) boxes, to the list of authorized packagings.
Section 173.184 provides the definition and packaging requirements for highway or rail fusees. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for highway or rail fusee.
Specifically, in this NPRM, PHMSA proposes to add steel (1A2), aluminum (1B2) or other metal (1N2) drums; steel (3A2) or aluminum (3B2) jerricans; and steel (4A), aluminum (4B) or other metal (4N) boxes, to the list of authorized packagings.
Section 173.186 provides definitions and packaging requirements for various types of matches. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for strike-anywhere matches specified in paragraph (f) of this section. Specifically, in this NPRM, PHMSA proposes to add steel drums (1A1 or 1A2), aluminum drums (1B1 or 1B2), other metal drums (1N1, 1N2), steel jerricans (3A1, 3A2), aluminum jerricans (3B1, 3B2), steel (4A), aluminum (4N) and other metal (4N) boxes, to the list of authorized packagings.
Section 173.187 prescribes the packaging requirements for pyrophoric solids, metals or alloys, n.o.s. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for pyrophoric solids, metals or alloys, n.o.s. specified in paragraph (a) and (d) of this section. Specifically, in this NPRM, PHMSA proposes to add steel, aluminum or other metal boxes (4A, 4B or 4N), to the list of authorized packagings in paragraph (a). In addition, PHMSA proposes to add steel, aluminum or other metal drums (1A1, 1A2, 1B1, 1B2, 1N1 or 1N2) to the list of authorized packagings in paragraph (d).
Section 173.187 prescribes the packaging requirements for white and yellow phosphorus. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for white and yellow phosphorus specified in paragraphs (a)(1) and (a)(2) of this section. Specifically, in this NPRM, PHMSA proposes to add steel, aluminum or other metal boxes (4A, 4B or 4N), to the list of authorized packagings in paragraph (a)(1). In addition, PHMSA proposes to add steel, aluminum or other metal drums (1A1, 1B1 or 1N1) not over 250 L (66 gallons) capacity each and steel, aluminum or other metal drums (1A2, 1B2, or 1N2) not over 115 L (30 gallons) capacity each, to the list of authorized packagings in paragraph (a)(2).
Section 173.189 prescribes the packaging and transport requirements for batteries containing sodium or cells containing sodium. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for batteries containing sodium or cells containing sodium specified in paragraph (b) of this section. Specifically, in this NPRM, PHMSA proposes to add 1N2, 4A, 4B, 4N, 4H1, 3A2, 3B3 and 3H2 outer packagings to the list of authorized outer packagings in paragraph (b).
Section 173.193 prescribes the packaging requirements for bromoacetone, methyl bromide, chloropicrin and methyl bromide or methyl chloride mixtures. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to this list permitted for bromoacetone, methyl bromide, chloropicrin and methyl bromide or methyl chloride mixtures specified in paragraph (a) of this section. Specifically, in this NPRM, PHMSA proposes to add metal boxes (4A, 4B or 4N) to the list of authorized outer packagings in paragraph (a).
Section 173.194 prescribes the packaging requirements for gas identification sets. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for gas identification sets specified in paragraphs (b)(1) and (b)(2) of this section. Specifically, in this NPRM, PHMSA proposes to add metal boxes (4A, 4B or 4N) to the list of authorized outer packagings in paragraphs (b)(1) and (b)(2).
Section 173.196 prescribes the packaging requirements for Category A infectious substances. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for category A infectious substances specified in paragraph (a)(3) of this section. Specifically, in this NPRM, PHMSA proposes to add drums (1A1, 1A2, 1B1, 1B2, 1N1, 1N2, 1H1, 1H2, 1D, 1G); boxes (4A, 4B, 4N, 4C1, 4C2, 4D, 4F, 4G, 4H1, 4H2); or jerricans (3A1, 3A2, 3B1,
Section 173.199 prescribes the packaging requirements for category B infectious substances. Paragraph (d) of this section provides the requirements for refrigerated or frozen specimens in ice, dry ice or liquid nitrogen. These provisions include the requirement to secure secondary packages.
Consistent with an editorial amendment to Packing Instruction P650 in the 17th Revised Edition of the UN Model Regulations, in this NPRM, PHMSA proposes to remove the language “position after the ice or dry ice has dissipated” from the requirements to secure secondary packages.
Section 173.201 prescribes the authorized non-bulk packagings for liquid hazardous materials in packing group I. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for non-bulk packagings used to package liquid hazardous materials in packing group I indicated in paragraph (b). Specifically, in this NPRM, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” to authorized outer packagings of combination packagings listed in paragraph (b) of this section.
Section 173.202 prescribes the authorized non-bulk packagings for liquid hazardous materials in packing group II. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for non-bulk packagings used to package liquid hazardous materials in packing group II specified in paragraph (b). Specifically, in this NPRM, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” to the authorized outer packagings of combination packagings indicated in paragraph (b).
Section 173.203 prescribes the authorized non-bulk packagings for liquid hazardous materials in packing group III. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for non-bulk packagings used to package liquid hazardous materials in packing group III specified in paragraph (b). Specifically, in this NPRM, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” to the authorized outer packagings of combination packagings indicated in paragraph (b).
Section 173.211 prescribes the authorized non-bulk packagings for hazardous materials in packing group I. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for non-bulk packagings used to package hazardous materials in packing group I specified in paragraphs (b) and (c). Specifically, in this NPRM, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” to the authorized outer packagings of combination packagings indicated in paragraph (b) and the single packagings authorized in paragraph (c).
Section 173.212 prescribes the authorized non-bulk packagings for hazardous materials in packing group II. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for non-bulk packagings used to package hazardous materials in packing group II specified in paragraphs (b) and (c). Specifically, in this NPRM, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” to authorized outer packagings of combination packagings indicated in paragraph (b). Further, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” and “Metal box other than steel or aluminum with liner: 4N” to authorized single packagings permitted in paragraph (c) of this section.
Section 173.213 prescribes the authorized non-bulk packagings for hazardous materials in packing group III. To provide greater flexibility in packaging selection, PHMSA proposes to add packaging options to the list permitted for non-bulk packagings used to package hazardous materials in packing group III specified in paragraphs (b) and (c). Specifically, in this NPRM, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” to the authorized outer packagings of combination packagings indicated in paragraph (b). Further, PHMSA proposes to add “Metal box other than steel or aluminum: 4N” and “Metal box other than steel or aluminum with liner: 4N” to the single packagings authorized in paragraph (c).
Section 173.219 prescribes the transport conditions and packaging requirements for life saving appliances. Paragraph (b) of this section provides a list of hazardous materials that a life-saving appliance is permitted to contain as well as other transport requirements. Currently, the transport conditions specified in paragraph (b)(1) of this section specify that Division 2.2 compressed gases, including oxygen are permitted; however, oxygen generators are not. In this NPRM, PHMSA proposes to broaden the materials permitted in life-saving appliances by modifying paragraph (b)(1) to include liquefied gases as well.
Paragraph (c) of this section prescribes the packaging requirements and exceptions provided for life saving appliances. Subsequent changes are proposed to paragraph (c)(1) of this section to reflect this inclusion of liquefied gases discussed previously. Furthermore, paragraph (c)(5) currently states that, for other than transportation by aircraft, life-saving appliances containing no hazardous materials other than carbon dioxide with a capacity not exceeding 100 cm
In addition, PHMSA proposes to further clarify paragraph (c)(5) of this section by adding the statement, “For transportation by aircraft, such appliances must be transported as cargo.” This clarification aligns the HMR with the recently adopted changes in the ICAO Technical Instructions regarding the air transport of life saving appliances that would otherwise be excepted from the HMR.
Section 173.221 prescribes the non-bulk packaging requirements for Polymeric beads (or granules), expandable,
Section 173.225 prescribes the packaging requirements and other provisions for organic peroxides. Packaging requirements for organic peroxides are very specific and include requirements for the concentration by mass permitted, diluents percentage, water mass, temperature controls and organic peroxide specific packing methods.
Paragraph (c) of this section contains and describes the organic peroxide table and how specific organic peroxides are to be transported. In addition, paragraph (e) contains a separate table that prescribes the packaging requirements for organic peroxides packaged in IBCs. As self-insulating hazardous materials, organic peroxides can pose different risks when transported in larger quantities. Thus, a separate table unique to the transport of these substances in IBCs is contained in the HMR. The “Organic Peroxide IBC Table” includes maximum quantities permitted to be packaged and any temperature and emergency controls.
The organic peroxides tables in paragraphs (c) and (e) specify by technical name those organic peroxides that are authorized for transportation and not subject to the approval provisions of § 173.128. An organic peroxide identified by technical name is authorized for transportation only if it conforms to all applicable provisions of these tables. In this NPRM, we are proposing to amend the Organic Peroxides Tables in § 173.225 by adding new entries and revising current entries to account for new organic peroxides and formulations that are commercially available.
The following entries are added in the § 173.225(c) organic peroxides table:
The following current entries in the § 173.225(c) organic peroxides table are amended:
The following entries are added to the § 173.225(e) Organic Peroxide IBC Table:
The following entries are amended in the § 173.225(e) Organic Peroxide IBC Table:
Section 173.226 prescribes the packaging requirements for Materials poisonous by inhalation, Division 6.1, Packing Group I, Hazard Zone A. Specifically, this section authorizes the transport of Materials poisonous by inhalation, Division 6.1, Packing Group I, Hazard Zone A in specification cylinders, specification drums packaged further in specification drums and combination packages. In this NPRM, PHMSA proposes to revise the requirements of paragraph (c) by adding an authorization to package such materials in “Metal box other than steel or aluminum: 4N” drums. In addition, PHMSA is correcting an editorial error by replacing the incorrect wording “Expanded plastic box: 4H2” with the correct wording “Expanded plastic box: 4H1.”
Section 173.230 prescribes the transport requirements for fuel cell cartridges containing hazardous material. Paragraph (e) of this section prescribes the packaging requirements for fuel cell cartridges containing hazardous material. Furthermore, paragraph (e)(2)(ii) notes that “Fuel cell cartridges contained in equipment must be protected against short circuits and the entire fuel cell system must be protected from unintentional activation. The equipment must be securely cushioned in the outer packaging.” As currently stated in the HMR, this requirement may imply that only fuel cell cartridges contained in equipment, not the fuel cell system, would have to be protected against short circuits. This is not the intent of this requirement. Therefore, in this NPRM, PHMSA is proposing to clarify that the entire fuel cell system must be protected against short circuits and unintentional activation.
Section 173.240 prescribes the bulk packagings authorized for certain low hazard solid materials. As discussed previously in this NPRM, PHMSA is proposing the adoption of flexible bulk container provisions throughout the HMR.
In this section, PHMSA proposes to add paragraph (f) that authorizes the use of FBCs for certain low hazard solid materials. Specifically, paragraph (f) will permit the use of FBCs if B120 is indicated in Column (7) of the specific entry in § 172.101 HMT and the FBC conforms to the requirements in subparts R and S of part 178 of the HMR. Furthermore, paragraph (f) notes that FBCs may not be used for Packing Group I or II hazardous materials. Only select low hazard solid materials are authorized for transport in FBCs. The use of FBCs for the transportation of an HMT entry not assigned special provision B120 is prohibited.
Section 173.306 prescribes the exceptions for limited quantities of compressed gases including aerosols. Paragraph (a) of this section prescribes the general requirements for limited quantities of compressed gases while paragraph (j) specifically addresses aerosols and receptacles small, containing gas, with a capacity of less than 50 mL.
In this NPRM, PHMSA proposes to revise paragraph (j) to note that aerosols conforming to this paragraph, when offered for transportation by air, must be transported as cargo unless specifically authorized for transport in checked or carry-on baggage. This clarification will align the HMR with the previously discussed changes adopted in the ICAO Technical Instructions regarding the air transport of aerosols that are otherwise excepted from the HMR.
Section 173.313 contains instructions for UN portable tanks and the table for
Chemical manufacturers throughout the world are currently supplying pressurized products contained and transported in gas cylinders. The products are liquids or solids such as adhesives, coatings and cleaners combined with a gas or gas mixtures in pressure receptacles under sufficient pressure to expel the contents. These mixtures are typically expelled from the pressurized receptacles as foams, streams or thick sprays. Under the current HMR these types of products are classified as liquefied gases and transported in accordance with the applicable sections for the liquefied gases in which they are classified. A typical product however is a combination of a propellant (gas phase) and a liquid or solid component, and therefore the term liquefied gas does not correctly reflect the contents. As they are not filled in aerosol dispensers and as the receptacles used exceed the volume limitations for aerosols, they may not be transported as aerosols. The United Nations Sub-Committee of experts on the Transportation of Dangerous goods agreed to create new entries (UN numbers) for these products to address their unique characteristics and corresponding regulations to address the safe transport of such materials.
In this NPRM we are proposing the adoption of entries in the HMT for various chemicals under pressure and the corresponding packaging provisions. In this NPRM, we propose to modify § 173.313 to include the packaging requirements for chemicals under pressure transported in portable tanks. Specifically, we propose to revise the section title, introductory test, and table name to reflect that chemicals under pressure are addressed in this section. We also propose to add table entries for identification numbers UN3500, UN3501, UN3502, UN3503, UN3504 and UN3505. Lastly, we propose to correct the maximum filling density for UN3220.
The addition of packaging requirements specific to chemicals under pressure will ensure that an appropriate level of safety is achieved for these unique materials. PHMSA participated in, and concurs with, the discussions and decisions regarding the packagings selected for these materials. The packagings adopted by the UN, ICAO and IMO provide an appropriate level of safety for these materials and, thus, PHMSA proposes adopting similar packagings in the HMR. Furthermore, aligning with international packaging standards will facilitate the movement of these materials both domestically and internationally.
Section 173.316 provides the requirements for cryogenic liquids contained in cylinders. Specifically, the HMR requires each cylinder containing cryogenic liquids be equipped with one or more pressure relief devices.
PHMSA proposes to revise § 173.316, “Cryogenic Liquids in Cylinders” to include a requirement consistent with the UN Model Regulations that all pressure relief device inlets must under maximum filling conditions be situated in the vapor space of the closed cryogenic receptacle and the devices must be so arranged as to ensure that the escaping vapor is discharged unobstructed.
This requirement would enhance safety by assisting in the proper function of the pressure release devices. Further, it would prevent unsafe conditions in transport if the liquid form of the gas were released through the pressure release device. For instance, if the gas released is a Division 2.1 (flammable) gas or a Division 2.3 (poisonous) gas, it would reduce the opportunity for the released liquid form of the gas to create an asphyxiant environment through the rapid displacement of the normal concentration of oxygen in the breathable atmosphere. Finally, it would reduce the potential of released cryogenic oxygen in liquid form to create an oxygen enriched atmosphere that may explosively combust.
Section 173.318 provides the requirements for cryogenic liquids contained in cargo tanks. Specifically, the HMR requires each cargo tanks containing cryogenic liquids be equipped with one or more pressure relief devices.
PHMSA proposes to revise § 173.318, “Cryogenic Liquids in Cargo Tanks” to include a requirement consistent with the UN Model Regulations that all pressure relief device inlets shall under maximum filling conditions be situated in the vapor space of the closed cryogenic receptacle and the devices shall be so arranged as to ensure that the escaping vapor is discharged unobstructed.
This requirement would enhance safety by assisting in the proper function of the pressure release devices. Further, it would prevent unsafe conditions in transport if the liquid form of the gas were released through the pressure release device. For instance, if the gas released is a Division 2.1 (flammable) gas or a Division 2.3 (poisonous) gas, it would reduce the opportunity for the released liquid form of the gas to create an asphyxiant environment through the rapid displacement of the normal concentration of oxygen in the breathable atmosphere. Finally it would reduce the chance of released cryogenic oxygen in liquid form creating an oxygen enriched atmosphere that may explosively combust.
Section 173.335 is created to provide packaging requirements for new HMT entries “Chemical under pressure n.o.s.” Specifically, PHMSA is proposing the transport requirements, filling limits, minimum service pressure, and periodic inspection requirements for cylinders utilized for shipments of chemical under pressure n.o.s.
Cylinders used to ship chemical under pressure n.o.s. must be authorized UN or DOT cylinders for the propellant and otherwise conform to the applicable requirements of subpart G of part 173.
Section 173.340 prescribes the packaging requirements for NA1693, tear gas devices. Paragraphs (c) and (d) prescribe the authorized packagings for tear gas devices. In this NPRM, PHMSA is proposing to revise the packaging requirements in paragraphs (c) and (d) by authorizing the use of 4A, 4B, or 4N metal boxes, and 1B2, 1N2, or 1H2 drums.
Section 175.8 provides exceptions from certain regulations for air carrier operator equipment and items of replacement, as well as for items used to provide customer service aboard an aircraft.
ICAO reviewed and revised the Technical Instructions applicable to exceptions from certain regulations for air carrier operator equipment and items of replacement, and to better reflect items that may be sold as part of duty free services. Consistent with the ICAO Technical Instructions, in this NPRM, PHMSA is proposing to revise paragraph (a)(3)(ii) to clarify that wet cell aircraft batteries up to 100 kg net mass per package may be transported. Additionally, lithium ion aircraft
Section 175.10 specifies the conditions for which passengers, crew members, or an operator may carry hazardous materials aboard an aircraft. Consistent with revisions to the ICAO Technical Instructions, in this NPRM, PHMSA is proposing to revise paragraph (a)(14), the conditions under which electrically powered heat-producing articles may be carried aboard an aircraft. The requirement that the heat-producing component, or the energy source, must be removed to prevent unintentional functioning during transport is being revised to permit the removal of another component, such as a fuse, to prevent unintentional functioning during transport. In addition the paragraph is being revised to specify procedures for protecting any removed battery from short circuit during transport. PHMSA is also proposing to add paragraphs (a)(20), (a)(21), (a)(22), (a)(23), and (a)(24) to specify conditions under which permeation devices for calibrating air quality monitoring equipment, internal combustion or fuel cell engines, non-infectious specimens, insulated packagings containing refrigerated liquid nitrogen, and small compressed gas cartridges fitted into devices, respectively, may be carried aboard an aircraft.
Section 176.2 provides definitions of terms specifically as they pertain to Part 176. In this NPRM, PHMSA is proposing various revisions to the vessel stowage and segregation requirements specified in Part 176. As part of these changes certain terminology must be defined.
The term “Closed cargo transport unit for Class 1” is defined by the IMDG Code as a freight container or transport vehicle that fully encloses the contents by permanent structures and can be secured to the ship's structure and are, except for the carriage of division 1.4 explosives, structurally serviceable (see § 176.172). Portable magazines conforming to § 176.137 are also considered closed cargo transport units for Class 1. Small compartments such as deck houses and mast lockers are included. Cargo transport units with fabric sides or tops are not closed cargo transport units. The floor of any closed cargo transport unit must either be constructed of wood, close-boarded or so arranged that goods are stowed on sparred gratings, wooden pallets or dunnage. The IMO adopted this new definition for “closed cargo transport unit for Class 1” to define the characteristics required for cargo transport units carrying explosives by vessel.
A new definition for “potential or possible sources of ignition” was adopted by the IMO for incorporation in the next published IMDG Code. The term “Potential or possible sources of ignition” as defined in the IMDG Code “means but is not limited to, open fires, machinery exhausts, galley uptakes, electrical outlets and electrical equipment including those on refrigerated or heated cargo transport units unless they are of a type designed to operate in a hazardous environment. The text “means but is not limited to” indicates that the list of potential or possible sources of ignition is not all inclusive; as it is impossible to identify in a definition all potential or possible sources of ignition that may exist on a variety of vessels with various engineering designs and stowage configurations. Adoption of this definition will provide guidance to vessel stowage planners in determining safe stowage locations for cargo on board vessels.
The term “Protected from sources of heat” as defined by the IMDG Code means “that packages and cargo transport units must be stowed at least 2.4 m from heated ship structures, where the surface temperature is liable to exceed 131 °F (55 °C). Examples of heated structures are steam pipes, heating coils, top or side walls of heated fuel and cargo tanks, and bulkheads of machinery spaces. In addition, packages not loaded inside a cargo transport unit and stowed on deck must be shaded from direct sunlight. The surface of a cargo transport unit can heat rapidly when in direct sunlight in nearly windless conditions and the cargo may also become heated. Depending on the nature of the goods in the cargo transport unit and the planned voyage precautions must be taken to ensure that exposure to direct sunlight is reduced”. This definition was adopted by the IMO for inclusion in the next IMDG Code to provide a list of possible sources of heat a cargo transport unit might encounter during vessel transport. This definition also includes requirements for break bulk packages stowed on deck that are required to be protected from sources of heat by means of a stowage provision or a general stowage requirement found in Part 176.
Therefore, in the NPRM PHMSA proposes to add definitions in this section for the terms, “Closed cargo transport unit for Class 1,” “Potential or possible sources of ignition” and “Protected from sources of heat” with additional text clarifying that a portable magazine conforming to § 176.137 is also considered “closed cargo transport unit for Class 1.”
Section 176.63 prescribes supplementary requirements with respect to the stowage of specific hazardous materials in addition to those authorized in the HMT in § 172.101. This section sets forth the basic physical requirements for the authorized vessel stowage locations.
In this NPRM PHMSA proposes to revise paragraph (b) of this section by replacing the phrase “shade from radiant heat” with the phrase “protected from sources of heat.” This revision of terminology is necessary to incorporate other proposed changes to the vessel stowage codes in Column 10 B of the HMT proposed in this NPRM.
In this NPRM PHMSA also proposes changes to paragraph (e) of this section, as the definition of “closed cargo transport unit for Class 1” was added to § 176.2 references to magazine stowage type A and C are no longer needed in this section.
Paragraph (e) also contains an exception for empty packages containing residue (excluding Class 2.3 empty packages containing residue and waste aerosols), including IBCs and large packages to be stowed on deck, or under deck if in a mechanically ventilated cargo space. This exception would apply regardless of the stowage provisions indicated in § 172.101(k). PHMSA believes the reduced hazard present in empty packages containing residue combined with the mechanically ventilated cargo space warrants a relaxation of stowage requirements for shipments of empty packages (excluding Class 2.3 and waste aerosols) that otherwise would require on deck stowage.
Section 176.76 specifies the requirements for transport vehicles, freight containers, and portable tanks containing hazardous materials transported via vessel. Currently paragraph (a)(9) of this section states that when security devices, beacons or other tracking or monitoring equipment are used, they must be securely installed
In this NPRM PHMSA proposes to replace the existing text in paragraph (a)(9) with new text requiring that banding or securing straps used to secure packages must not be over tightened to cause damage or deformation of the packages or the securing points within the freight container or transport vehicle. PHMSA proposes this change to harmonize cargo securement requirements in the HMR with recently adopted changes in the IMDG Code. This requirement is intended to prevent undue stress and potential damage to packages and tie down points during transport.
Section 176.83 prescribes the general vessel segregation requirements. Paragraph (m) of this section specifies additional segregation requirements for certain groups of hazardous materials. Paragraph (m)(2) of this section prescribes segregation requirements for materials shipped under n.o.s. entries. Furthermore, paragraph (m)(3) discusses materials that fall outside the defining criteria for hazardous materials, but display chemical properties similar to hazardous materials listed in segregation groups.
In this NPRM PHMSA is proposing to revise paragraph (m)(2) to clarify that the offeror of hazardous materials is responsible for deciding if allocation of a segregation group is appropriate. PHMSA is also proposing to revise paragraph (m)(3) to clarify that the offer of hazardous materials for transportation or the person packing the cargo transport unit is responsible for identifying a relevant segregation group and applying the segregation requirements for that segregation group. These revisions will replace the current term “shipper,” which is not defined in § 171.8, with the terms “offeror” and “person who offers” which are defined terms in § 171.8.
Section 176.84 prescribes the meanings and requirements for numbered or alpha-numeric stowage provisions for vessel shipments listed in column 10B of the § 172.101 Hazardous Materials Table. The provisions in § 176.84 are broken down into general stowage provisions whose meanings are defined in the “table of provisions” in paragraph (b), and the stowage provisions applicable to vessel shipments of Class 1 explosives defined in the table to paragraph (c)(2).
In this NPRM, PHMSA is proposing to revise stowage provisions 25 and 128 and delete stowage provisions 19, 48, and 50 from the table in paragraph (b). Stowage provision 25 is revised from “Shade from radiant heat” to read “Protected from sources of heat.” Stowage provision 128 is revised from “Stow in accordance with the IMDG Code, Sub-section 7.1.10.3 (incorporated by reference; see § 171.7 of this subchapter)” to read “Stow in accordance with the IMDG Code, Sub-section 7.6.2.7.2 (incorporated by reference; see § 171.7 of this subchapter).” Deleted stowage provision 19 previously read “Protect from sparks and open flames.” Deleted stowage provision 48 previously read “Stow “away from” sources of heat”. Deleted stowage provision 50 previously read “Stow “away from” sources of heat where temperatures in excess of 55 °C (131 °F) for a period of 24 hours or more will be encountered.”
The current stowage provision table in paragraph (b) contains three listings requiring shipments to be either shaded or stowed away from sources of heat. The addition of a standard definition for “protected from sources of heat” to the list of definitions in § 176.2 has rendered stowage provisions 19, 48, and 50 redundant and all HMT listings previously assigned stowage provisions 19 or 48 have been assigned the revised stowage provision 25. Furthermore, no listings in the current HMR are assigned stowage provision 50 therefore we are deleting it and all references to it. The change to stowage provision 128 is proposed to account for a citation change in the newest edition of the IMDG Code.
In this NPRM PHMSA is also proposing to revise explosive stowage provision 26E and delete explosive stowage provisions 7E, 8E, and 20E from the table in paragraph (c)(2). Deleted explosive stowage provision 7E previously read “Stowage category “04” for projectiles or cartridges for guns, cannons or mortars; Stowage category “08” for other types.” Deleted explosive stowage provision 8E previously read “When under deck, special stowage is required.” Deleted explosive stowage provision 20E previously read “Stowage category “03” for projectiles or cartridges for guns, cannons or mortars; Stowage category “07” for other types; magazines must be of steel construction that prevents leakage.” Changes to explosive stowage provisions 7E, 8E, and 20E are necessary to account for revisions to the stowage category definitions proposed in § 172.101(k). Additionally, as a result of the removal of stowage provisions 10 and 13 from § 172.101(k), PHMSA proposes to revise explosive stowage provision 26E in § 176.84. Please see section 172.101 for explosive stowage codes associated with HMT entries previously assigned these explosive stowage provisions and a list of entries these provisions have been removed from.
Section 176.116 prescribes the general stowage conditions for Class 1 explosive materials. Paragraph (a) of this section prescribes explosive stowage requirements, which take into account heat and sources of ignition. Paragraph (f) of this section prescribes explosives stowage requirements for under deck storage. In this NPRM PHMSA is proposing to revise paragraph (a) to clarify the general stowage conditions for Class 1 materials on board vessels and delete and reserve paragraph (f).
PHMSA proposes to revise paragraph (a)(1) to require explosive materials to be stowed in a cool part of the ship, to be kept as cool as practicable while on board, and to be stowed as far away as practicable from any potential source of heat or ignition. This change is proposed due to the inclusion of a definition for “potential source of heat or ignition” in § 176.2. A new paragraph (a)(2) is proposed requiring Class 1 materials to be stowed away from the side of a ship's side at a distance at least equal to one eighth of the beam of the vessel or 2.4 m (8 feet), whichever is less.
This minimum distance for explosive shipment stowage from the ship's side is proposed to harmonize with a recent change in the IMDG Code and provides an increased level of safety by ensuring explosive shipments are not stowed adjacent to the ships internal structure.
Paragraph (f) previously indicated general stowage provisions for HMT explosive entries stowed under deck and assigned stowage category 09 or 10. The proposed removal of stowage category 09 and 10 make these provisions no longer applicable.
Section 176.128 defines the varying levels of containment for explosives identified as magazine stowage types “A”, “C,” and “Special Stowage.” The IMO has determined that a distinction between closed cargo transport units and magazines is no longer necessary. PHMSA concurs with the IMO on this issue and, thus, in this NPRM, proposes to delete § 176.128 and reserve it for future use. With the addition of a definition for “closed cargo transport
Section 176.130 prescribes requirements for magazine stowage type A. The IMO determined that a distinction between closed cargo transport units and magazines is no longer necessary. PHMSA concurs with the IMO on this issue and thus in this NPRM proposes to delete § 176.130 and reserve it for future use. In general, a magazine is equivalent to a closed cargo transport unit with a wooden floor. Properly packaged and transported packages in a closed cargo transport unit will adequately address safety concerns presented by commodities previously required to be transported in magazine stowage type A.
Section 176.133 prescribes requirements for magazine stowage type C. The IMO has determined that all explosive shipments must be stored at a distance at least equal to one eighth of the beam of the vessel or 2.4 m (8 feet), whichever is less, thus making the provisions for magazine stowage type C unnecessary. PHMSA concurs with the IMO on this issue and thus in this NPRM proposes to delete § 176.133 and reserve it for future use.
Section 176.134 prescribes requirements for vehicles carrying Class 1 materials requiring magazine stowage. The removal of magazine stowage definitions and provisions make this section unnecessary. Therefore, in this NPRM PHMSA proposes to delete this section and reserve it for future use.
Section 176.136 prescribes requirements for special stowage of Class 1 materials. Changes to vessel stowage location codes in § 172.101(k) and the assignment of vessel stowage codes requiring on deck stowage for entries previously authorized special stowage make this section unnecessary. Therefore, in this NPRM PHMSA proposes to delete this section and reserve it for future use.
Section 176.138 prescribes general requirements for on deck stowage. Paragraph (b) provides general requirements for on deck stowage of explosives. In this NPRM PHMSA proposes to revise this section to require explosives to not be stowed within 6 m (20 feet) of the newly defined term “any potential sources of heat or ignition.” This change is proposed to incorporate a newly defined term in § 176.2.
Section 176.144 prescribes segregation requirements for Class 1 materials transported by vessel. Paragraph (d) allows materials requiring ordinary stowage (non-magazine stowage) to be stowed in the same magazine as materials requiring magazine stowage. In this NPRM PHMSA proposes to revise paragraph (d) to state that if part of a shipment requires non-metallic lining of closed cargo transport units, Class 1 materials requiring ordinary stowage (stowage not requiring non-metallic lining of closed cargo transport units) may be stowed in the same closed cargo transport unit provided there are no exposed parts of any ferrous metal or aluminum alloy, unless separated by a partition. The removal of sections and requirements for magazine stowage necessitates a change in this section.
Section 176.146 prescribes segregation requirements for Class 1 materials and non-hazardous goods transported by vessel. Paragraph (a) currently states that Class 1 material need not be segregated from non-hazardous materials except as provided in paragraphs (b) and (c). Paragraph (b) then goes on to state that certain cargo (mail, baggage, and personal effects) may not be stowed in the same compartment as, or in compartments immediately above or below, Class 1 (explosive) materials other than those in compatibility group S. Paragraph (c) states that where Class 1 (explosive) materials are stowed against an intervening bulkhead, any mail on the other side of the bulkhead must be stowed away from it.
In this NPRM, PHMSA proposes to revise paragraphs (a) and (b) and delete and reserve paragraph (c). Specifically, PHMSA proposes to revise paragraph (a) to remove a reference to the removed paragraph (c). PHMSA proposes to revise paragraph (b) to read “readily combustible materials may not be stowed in the same compartment or hold as Class 1 (explosive) materials other than those in compatibility group S.” This change incorporates the adoption by IMO of the defined term “readily combustible material” in 176.2. In this NPRM, PHMSA proposes removing and reserving paragraph (c) as the vast majority of mail is now sent by air and not vessel. A specific requirement for stowage of mail away from the intervening bulkhead between it and Class 1 materials is deemed unnecessary.
Section 176.170 prescribes requirements for shipments of Class 1 materials in freight containers by vessel. Paragraph (a) states that when Class 1 materials are stowed in a freight container, the freight container, for the purposes of this subpart, may be regarded as a magazine but not as a separate compartment. Paragraph (c) states that freight containers used to transport Class 1 (explosive) materials for which magazine stowage type A is required must have a floor consisting of tightly fitted wooden boards, plywood or equivalent non-metallic material, and a non-metallic lining.
In this NPRM, PHMSA proposes to amend paragraph (a) and delete and reserve paragraph (c). Paragraph (a) would be revised to state that when Class 1 materials are stowed in a freight container, the freight container, for the purposes of this Subpart, may be regarded as a closed transport unit for Class 1 or a magazine but not a separate compartment. This change is being made to incorporate the proposed definition of “closed cargo transport unit for Class 1” and the removal of magazine stowage A, C, and Special Stowage. Paragraph (c) references freight containers used to transport Class 1 (explosive) materials for which magazine stowage type A is required. The removal of a definition for and requirements for magazine stowage type A make this paragraph unnecessary.
Section 176.200 prescribes general stowage requirements for Class 2 materials transported by vessel. Paragraph (c) of this section prescribes the orientation and outer packaging requirements for cylinders transported by vessel.
In this NPRM, PHMSA proposes revisions to paragraph (c) to clarify that cylinders offered for transport by vessel in a vertical position must be stowed in either a block and cribbed or boxed-in with suitable sound lumber. PHMSA also proposes to replace the word movement with shifting in the requirement for the crib or box bracing
Section 176.210 prescribes on deck stowage requirements for cylinders transported by vessel. This section currently requires cylinders of Class 2 materials being transported by vessel to be protected from radiant heat, including the direct rays of the sun, by structural erections or awnings.
In this NPRM PHMSA proposes to revise this section by replacing “protected from radiant heat, including the direct rays of the sun, by structural erections or awnings” with the newly defined term “protected from sources of heat.”
Section 176.230 prescribes stowage requirements for Division 2.1 materials transported by vessel. Currently the HMR requires Division 2.1 materials transported in Specification 106A or 110A multi-unit car tanks must be stowed on deck only, and must be shaded from radiant heat.
In this NPRM, PHMSA proposes to replace the phrase “shaded from radiant heat” with the newly defined “protected from sources of heat.”
Section 176.305 prescribes stowage requirements for Class 3 materials transported by vessel. Paragraph (a) states that Class 3 flammable or combustible liquids must be kept as cool as reasonably practicable and be stowed away from all sources of heat and ignition.
In this NPRM, PHMSA proposes to revise paragraph (a) to read “a Class 3 (flammable) or combustible liquid must be kept as cool as reasonably practicable, protected from sources of heat, and away from potential sources of ignition.” These changes incorporate the proposed definitions of “protected from sources of heat” and “potential or possible sources of ignition.”
Section 176.400 prescribes stowage requirements for Division 1.5, Class 4 (flammable solids) and Class 5 materials transported by vessel. Paragraph (a) requires Class 4 (flammable solid) material and Division 5.2 (organic peroxide) materials to be kept as cool as reasonably practicable and be stowed away from all sources of heat and ignition.
In this NPRM, PHMSA proposes to revise paragraph (a) to read “Class 4 (flammable solid) material and Division 5.2 (organic peroxide) material must be kept as cool as reasonably practicable, protected from sources of heat, and away from potential sources of ignition.” These changes incorporate the proposed definitions of “protected from sources of heat” and “potential or possible sources of ignition.”
Paragraph (b) of this section requires Division 5.2 (organic peroxide) material to be stowed away from living quarters or access to them. Division 5.2 (organic peroxide) substances not requiring temperature control should be protected from radiant heat, which includes direct rays of the sun, and stowed in a cool, well-ventilated area.
In this NPRM, PHMSA proposes to amend paragraph (b) to replace “should be protected from radiant heat, which includes direct rays of the sun, and stowed in a cool, well-ventilated area” with “must be protected from sources of heat, including radiant heat and strong sunlight, and must be stowed in a cool, well-ventilated area.” These changes are being made to incorporate the proposed definitions of “protected from sources of heat” harmonize with the IMDG Code, and to emphasize that protecting shipments of organic peroxides not requiring temperature control from sources of heat is a requirement and not optional.
Section 176.600 prescribes detailed requirements for Division 2.3 (Poisonous Gas) and Division 6.1 (Poisonous) materials transported by vessel. Paragraph (d) of this section requires each package of Division 2.3 (poisonous gas) material or Division 6.1 (poison) material that also bears a FLAMMABLE LIQUID or FLAMMABLE GAS label must be stowed in a mechanically ventilated space, kept as cool as reasonably practicable, and be stowed away from all sources of heat and ignition.
In this NPRM, PHMSA proposes to revise paragraph (d) to replace “stowed away from all sources of heat and ignition” with “protected from sources of heat and stowed away from potential sources of ignition.” These changes incorporate the proposed definitions of “protected from sources of heat” and “potential or possible sources of ignition.”
Section 176.907 is created to incorporate cargo transport requirements for shipments of UN2211, Polymeric Beads, Expandable
Section 178.512 prescribes the standards, packaging identification codes, and construction requirements for steel and aluminum boxes (4A and 4B boxes). To incorporate the authorization for use of 4N boxes (metal other than steel or aluminum), the title of the section would be revised to “Standards for steel, aluminum or other metal boxes.” Section 178.512 is also revised to include the authorized packaging identification code, 4N, for other metal boxes, and expand the construction requirements of the section to include these packagings. Subsequent changes will be made throughout the section to address the inclusion of 4N other metal boxes.
Section 178.603 prescribes the drop test requirements for non-bulk packagings in the HMR. Section 178.603 provides that a drop test must be conducted for the qualification of all packaging design types, and further provides that exceptions for the number of steel and aluminum packaging samples used for conducting the drop test are subject to the approval of the Associate Administrator. Currently, paragraph (a) of this section contains a table that outlines specific types of packagings and the corresponding number of samples that should be tested and the drop orientation of those samples. In this NPRM, PHMSA is proposing to revise this table by including “other metal boxes” to the listed packagings. To incorporate the authorization for use of 4N boxes (metal other than steel or aluminum), § 178.603 is revised to require the drop test for other metal (4N) boxes, and authorize exceptions, subject to the approval of the Associate Administrator, for the number of samples used for conducting the drop test of these packagings.
Section 178.705 prescribes standards for metal IBCs. Paragraph (a)(3) indicates that IBC specifications 31A, 31B, and 31N are authorized for both liquids and solids. PHMSA is proposing to revise this sentence editorially by removing the authorization to package solids in specification 31 IBCs as the specification is only assigned to liquid substances. This editorial change is consistent with the § 172.102 IBC Code Table revisions in paragraph (c)(4) and other IBC standards (e.g., § 178.707(a)(5)) prescribed in subpart N of part 178.
Section 178.910 prescribes the marking requirements for specification Large Packaging design types. Paragraph (a)(1) of this describes the size specifications and format of the marking requirements. In this NPRM PHMSA is proposing to clarify these requirements by indicating that for large packages manufactured after January 1, 2014 the minimum marking size must be 12 mm in height.
Furthermore, paragraph (b) of this section is now reserved. However, we are proposing to add a paragraph (b) indicating that for all Large Packages manufactured, repaired or remanufactured after January 1, 2015 the large package must be marked with the symbol applicable to a Large Package designed for stacking or not designed for stacking, as appropriate. This language will be accompanied by an example of such a mark.
Section 178.980 prescribes the procedures for conducting the stacking test for qualification of all Large Packaging design types. Paragraph (e)(1) describes the criterion a metal or rigid plastic Large Packaging must meet to be considered as successfully passing the stacking test. While paragraph (e) addresses metal or rigid plastic Large Packagings, the criterion that a fiberboard or wooden Large Packaging must meet to be considered as successfully passing the stacking test is omitted.
Therefore, in this NPRM, we propose to correct this omission, by adding a new paragraph (e)(2) that addresses the criterion for fiberboard or wooden Large Packagings to pass the test and redesignating the following paragraphs accordingly.
Currently, the HMR do not contain specifications for FBCs. In this NPRM, PHMSA is proposing to adopt the specification, construction, and testing requirements for FBCs. On February 2, 2010, PHMSA published a final rule in the
PHMSA proposes to adopt new § 178.1000 entitled “Purpose and scope.” This section prescribes the packaging designs to which Subpart R applies and the location in the HMR where terms used in the subpart are defined.
In this NPRM, PHMSA proposes to add new § 178.1005 entitled “Flexible Bulk Container Identification Code.” This section provides the identification code (i.e. BK3) assigned to FBCs.
In this NPRM, PHMSA proposes to add new § 178.1010 entitled “Marking of Flexible Bulk Containers.” This section prescribes the markings the manufacturer of an FBC must mark on a package to indicate the FBC meets the specification. The proposed marking requirements for FBCs are based on the current marking requirements for IBCs prescribed in § 178.703.
In this NPRM, PHMSA proposes to add new § 178.1015 entitled “General Flexible Bulk Container Standards.” This section prescribes the general packaging integrity requirements an FBC design must meet.
In this NPRM, PHMSA proposes to add new § 178.1020 entitled “Period of use for transportation of hazardous materials in Flexible Bulk Containers.” This section prescribes the length of time an FBC may be used to package hazardous materials. Specifically, this section states that an FBC used to package hazardous materials may remain in service not to exceed two years from the date of manufacture.
Currently, the HMR do not prescribe testing criteria for FBCs. In this NPRM, PHMSA is proposing to adopt testing protocol for FBCs. On February 2, 2010, PHMSA published a final rule in the
In this NPRM, PHMSA proposes to adopt § 178.1030 entitled “Purpose and scope.” This section prescribes the applicability to which the Subpart S tests apply.
In this NPRM, PHMSA proposes to adopt § 178.1035 entitled “General requirements.” This section prescribes the general packaging requirements for FBCs and addresses the following topics: FBC-related definitions; defining responsibility for compliance with specification requirements; design qualification testing; periodic design testing; proof of compliance; and record retention.
In this NPRM, PHMSA is proposing to adopt test preparation requirements for FBCs in new § 178.1040 entitled “Preparation of Flexible Bulk Containers for Testing.” This section specifies the general test preparation requirements applicable to all tests an FBC is required to successfully pass.
In this NPRM, PHMSA is proposing to adopt requirements for drop tests conducted on FBCs. A drop test is used to measure a packaging's ability to withstand falls from specific heights and is used to determine if a package is suitable to transport hazardous materials. Thus, PHMSA proposes to add a new § 178.1045 entitled “Drop test.” This section prescribes the preparation of test samples, test methods authorized, drop heights, and criteria for passing the drop test.
In this NPRM, PHMSA is proposing to adopt requirements for top lift tests conducted on FBCs. A top lift test measures a package's ability to be moved mechanically by lifting the package by its top end and is used to determine if a package is suitable to transport hazardous materials. Thus, PHMSA proposes to add new § 178.1050 entitled “Top lift test.” This section prescribes requirements for the preparation of test samples, test methods authorized, and criteria for passing the top lift test.
In this NPRM, PHMSA is proposing to adopt requirements for stacking tests conducted on FBCs. A stacking test is used to measure a packaging's ability to withstand other packages placed on top of it and is used to determine if a package is suitable to transport hazardous materials. Thus, PHMSA proposes to add new § 178.1055 entitled “Stacking test.” This section prescribes requirements for the preparation of test samples, test methods authorized, and criteria for passing the stacking test.
In this NPRM, PHMSA is proposing to adopt requirements for topple tests conducted on FBCs. A topple test is used to measure a packaging's ability to withstand tipping of the package and is used to determine if a package is suitable to transport hazardous materials. Thus, PHMSA proposes to add new § 178.1060 entitled “Topple test.” This section prescribes the preparation of test samples, test methods authorized, topple height, and criteria for passing the topple test.
In this NPRM, PHMSA is proposing to adopt requirements for righting tests conducted on FBCs. A righting test is used to measure a packaging's ability to withstand lifting from a lying position at a given rate of speed and is used to determine if a package is suitable to transport hazardous materials. Thus, PHMSA proposes to add new § 178.1065 entitled “Righting test.” This section prescribes the preparation of test samples, test methods authorized, and criteria for passing the righting test.
In this NPRM, PHMSA is proposing to adopt requirements for tear tests conducted on FBCs. A tear test is used to measure a packaging's ability to withstand shearing and tearing that may be encountered during transportation, such as loading and unloading, and is used to determine if a package is suitable to transport hazardous materials. Thus, PHMSA proposes to add new § 178.1070 entitled “Tear test.” This section prescribes the preparation of test samples, test methods authorized, and criteria for passing the tear test.
This proposed rule is published under the following statutory authorities:
1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. This proposed rule amends regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. To this end, the proposed rule amends the HMR to more fully align them with the biennial updates of the UN Model Regulations, the IMDG Code and the ICAO Technical Instructions.
Harmonization serves to facilitate international commerce; at the same time, harmonization promotes the safety of people, property, and the environment by reducing the potential for confusion and misunderstanding that could result if shippers and transporters were required to comply with two or more conflicting sets of regulatory requirements. While the intent of this rulemaking is to align the HMR with international standards, we review and consider each amendment on its own merit based on its overall impact on transportation safety and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without sacrificing the current HMR level of safety and without imposing undue burdens on the regulated community. Thus, as explained in the corresponding sections above, we are not proposing harmonization with certain specific provisions of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions. Moreover, we are maintaining a number of current exceptions for domestic transportation that should minimize the compliance burden on the regulated community. Additionally, the following external agencies were consulted in the development of this rule: U.S. Coast Guard, U.S. Department of Agriculture (USDA), U.S. Department of Energy, U.S. Department of Interior, U.S. Department of Justice.
2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. This rule proposes to amend the HMR to maintain alignment with international standards by incorporating various amendments to facilitate the transport of hazardous material in international commerce. To this end, as discussed in detail above, PHMSA proposes to incorporate changes into the HMR based on the 17th Revised Edition of the UN Model Regulations, Amendment 36-12 to the IMDG Code, and the 2013-2014 ICAO Technical Instructions, which become effective January 1, 2013. The large volume of hazardous materials transported in international commerce
This notice is not considered a significant regulatory action under section 3(f) of Executive Order 12866 (“Regulatory Planning and Review”) and, therefore, was not reviewed by the Office of Management and Budget. This notice is not considered a significant rule under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Additionally, E.O. 13563 (“Improving Regulation and Regulatory Review”) supplements and reaffirms E.O. 12866, stressing that, to the extent permitted by law, an agency rulemaking action must be based on benefits that justify its costs, impose the least burden, consider cumulative burdens, maximize benefits, use performance objectives, and assess available alternatives.
The primary benefit of harmonizing the U.S. Hazardous Materials Regulations (HMR) with the international hazardous materials standards noted previously is that it will reduce the regulatory compliance costs faced by U.S. companies. Without harmonization, these companies will be forced to comply with dual systems of regulations, and as a result will incur higher compliance costs than would be encountered under a single regulatory scheme. The benefit of harmonization attributable to this proposed rulemaking is the difference in regulatory compliance costs faced by companies operating under a single regulatory framework instead of multiple regulatory frameworks.
If the U.S. regulations are not harmonized with the international standards mentioned above, we estimate that it will cost U.S. companies an additional $62 million per year to comply with both the HMR and the international standards. Harmonizing the HMR with the international standards, however, will avert these $62 million in additional costs, and these averted costs are therefore considered the primary benefit attributable to this rulemaking.
The $62 million estimate is based on the assumption that in the absence of harmonization both exporters and importers would have to adhere to two separate hazard communication systems, one used for the transportation of materials within the United States and one used for the transportation of materials outside the United States. Exporters would directly incur four different cost elements and would have to pay for (1) Dual labels and safety data sheets, (2) additional training, (3) additional management activities, and (4) additional packaging costs. Foreign producers who ship products to the United States would also incur these four cost elements, and we assume that the foreign producers would pass half of those incurred costs on to U.S. consumers in the form of higher prices.
To develop the $62 million estimate, we estimated the average hazard communication cost per dollar of hazardous materials produced in the United States and then multiplied that cost figure by an estimate of the value of U.S. imports and exports of hazardous materials. In other words, in the absence of harmonization, we assume that companies involved with U.S. foreign trade would have to pay for additional hazard communication requirements for international movements; these companies would have to comply with the HMR communication requirements during domestic legs of the movement and with international standards during legs of the movement outside of the United States.
A proxy for hazard communication costs was obtained from a recent OSHA study looking at the costs for industry to comply with the revised Hazard Communication Standard.
To put the $177 million hazard communication cost estimate on a per unit basis, we divided the $177 million by an estimate of the total value of hazardous materials produced in the United States in 2010. The total value of hazardous materials produced in the United States was estimated to be $151 billion. To derive this $151 billion estimate, we summed relevant product values reported in the Census Bureau's Annual Survey of Manufactures: Value of Product Shipments, and then multiplied the result by 12.4 percent—the percentage of shipment values reported to be hazardous products (this parameter was obtained from Table 10 in the Census Bureau's 2007 Commodity Flow Survey for Hazardous Materials). The resulting hazard communication cost per dollar of hazardous materials output was estimated to be $0.001 (or $177 million ÷ $151 billion).
We were not able to identify any comprehensive source on hazardous materials imports and exports and therefore developed estimates for these figures using quarterly trade data from the Bureau of Economic Analysis
We then multiplied this $498 billion trade figure by 12.4 percent, the percentage of output in these industries reported to be hazardous products; this parameter was obtained from Table 10 in the 2007 Commodity Flow Survey for Hazardous Materials. The resulting estimate indicates that approximately $62 billion worth of hazardous materials were involved in international trade with the United States in 2010.
Multiplying the hazard communication cost per dollar of hazardous material output ($0.001) by the value of hazardous materials involved in international trade ($62
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule preempts State, local, and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects, as follows:
(1) The designation, description, and classification of hazardous material;
(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;
(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and
(5) The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.
This proposed rule addresses covered subject items (1), (2), (3), (4) and (5) above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This proposed rule is necessary to incorporate changes adopted in international standards, effective January 1, 2013. If the changes in this proposed rule are not adopted in the HMR, U.S. companies, including numerous small entities competing in foreign markets, would be at an economic disadvantage. These companies would be forced to comply with a dual system of regulations. The changes in this proposed rulemaking are intended to avoid this result. Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the
This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
Many companies will realize economic benefits as a result of these amendments. Additionally, the changes effected by this NPRM will relieve U.S. companies, including small entities competing in foreign markets, from the burden of complying with a dual system of regulations. Therefore, we certify that these amendments will not, if promulgated, have a significant economic impact on a substantial number of small entities.
This proposed rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.
PHMSA currently has approved information collections under Office of Management and Budget (OMB) Control Number 2137-0018, “Inspection and Testing of Portable Tanks and Intermediate Bulk Containers,” and OMB Control Number 2137-0572, “Testing Requirements for Non-Bulk Packages.” This NPRM may result in an increase in the annual burden and costs of both OMB Control Numbers due to the proposed amendments to allow the use of metals other than steel or aluminum for drums and boxes as well as the proposed new Flexible Bulk Container package authorization, which will require package manufacturers to document and maintain package test results, should they elect to manufacture Flexible Bulk Containers.
Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it has been approved by OMB and displays a valid OMB control number. Section 1320.8(d), title 5, Code
This notice identifies revised information collection requests that PHMSA will submit to OMB for approval based on the requirements in this proposed rule. PHMSA has developed burden estimates to reflect changes in this proposed rule, and estimates the information collection and recordkeeping burden as proposed in this rule to be as follows:
PHMSA specifically requests comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these proposed requirements. Address written comments to the Dockets Unit as identified in the
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more, adjusted for inflation, to either State, local, or tribal governments, in the aggregate, or to the private sector in any one year, and is the least burdensome alternative that achieves the objective of the rule.
The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations require federal agencies to conduct an environmental review considering: (1) The need for the proposed action; (2) alternatives to the proposed action; (3) probable environmental impacts of the proposed action and alternatives; and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).
In this NPRM, PHMSA is proposing to amend the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize and align the HMR with recent amendments adopted in the UN Model Regulations, IMDG Code, and the ICAO Technical Instructions. The amendments proposed in this notice are intended to facilitate the safe and efficient transportation of hazardous materials in international commerce, provide clarity designed to encourage and increase regulatory compliance, and improve the efficacy of emergency response in the event a hazardous materials incident occurs.
In developing this proposed rule, we considered three alternatives:
(1) Do nothing.
(2) Adopt the international standards in their entirety.
(3) Adopt most of the international standards, with certain modifications based on safety or economic considerations.
Because our goal is to facilitate uniformity, compliance, commerce and safety in the transportation of hazardous materials, we rejected this alternative.
By adopting the international standards in their entirety, PHMSA could potentially adopt provisions that, in our view, do not provide an adequate level of transportation safety and environmental safety and protection. Further, because we provide for domestic exceptions and extended compliance periods to minimize the potential economic impact of any revisions on the regulated community, this alternative was also rejected.
Consistency between U.S. and international regulations helps to assure the safety of international hazardous materials transportation and the environment through better understanding of the regulations, an increased level of compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and effective emergency response in the event of a hazardous materials incident. Under Alternative 3, we would harmonize the HMR with international standards to the extent consistent with U.S. safety, economic, and environmental protection goals.
Alternative 3 is the only alternative that addresses, in all respects, the purpose of this regulatory action, which is to facilitate the safe and efficient transportation of hazardous materials in international commerce and the protection of the environment. These actions will provide the greatest possible harmonization with
Hazardous materials are transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, or loading, unloading, or handling problems. The ecosystems that could be affected by a release include air, water, soil, and ecological resources (for example, wildlife habitats). The adverse environmental impacts associated with releases of most hazardous materials are short-term impacts that can be greatly reduced or eliminated through prompt clean-up of the accident scene. Most hazardous materials are not transported in quantities sufficient to cause significant, long-term environmental damage if they are released.
The hazardous material regulatory system is a risk-management system that is prevention-oriented and focused on identifying hazards and reducing the probability and quantity of a hazardous material release. Amending the HMR to maintain alignment with international standards enhances the safe transportation of hazardous materials in domestic and international commerce. When considering the adoption of international standards under the HMR, we review and consider each amendment on its own merit and assess the likely impact on transportation safety and the environment. It is our preliminary conclusion that the proposals in this notice will not have either a substantial positive or adverse effect on the environment. Consequently, PHMSA welcomes public comment on the matter.
In this NPRM, PHMSA is proposing the following noteworthy amendments to the HMR:
Because the amendments proposed in this notice reducing and consolidating the number of vessel stowage codes for explosives result in greater clarity of the HMR and reduce the potential of incidents occurring, PHMSA believes they will have a positive impact on the environment.
In this NPRM, PHMSA proposes to amend the HMR in response to revisions adopted in the various international standards. Through this integrated and cooperative approach, we believe we can be most successful in reducing incidents, enhancing public safety, and protecting the environment. The proposed amendments are intended to update, clarify, or provide relief from certain existing regulatory requirements and to provide greater flexibility in packaging selection suitable for the transportation of hazardous materials. PHMSA believes the net environmental impact of this rule will be positive. Additionally, we believe there will be little or no adverse environmental impacts associated with the amendments proposed in this rule. PHMSA solicits public comment on the conclusions made in this preliminary analysis.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Under E.O. 13609, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not cause unnecessary obstacles to foreign trade. In fact, the rule is designed to facilitate international trade. Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.
Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements.
Education, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium.
Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements.
Hazardous materials transportation, Incorporation by reference, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, PHMSA proposes to amend 49 CFR Chapter I as follows:
1. The authority citation for part 171 continues to read as follows:
49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 section 31001.
2. In § 171.7, in the paragraph (a)(3) table, the following changes are made:
a. Under the entry “International Civil Aviation Organization (ICAO),” the entry “Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions)” is revised;
b. Under the entry “International Maritime Organization (IMO)” the entries “International Maritime Dangerous Goods Code (IMDG Code)” and “International Convention for the Safety of Life at Sea (SOLAS) Amendments 2000” are revised;
c. Under the entry “International Organization for Standardization,” the entries “ISO 10156:1996, Gases and Gas Mixtures—Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets, Second edition, May 2005 (E)” and “ISO 10156-2:2005, Gas cylinders—Gases and gas mixtures—Part 2: Determination of oxidizing ability of toxic and corrosive gases and gas mixtures, First edition, August 2005, (E)” are replaced by “ISO 10156:2010, Gases and Gas Mixtures—Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets” in appropriate numerical order. Additionally, the entry “ISO 4126-1: Safety valves—Part 1: General requirements, December 15, 1991, First edition” is revised as the entry “ISO 4126-1: Safety valves—Part 1: General requirements/Cor 1, August 2, 2007, Second edition,” the entry “ISO 11117, Gas cylinders—Valve protection caps and valve guards for industrial and medical gas cylinders—Design, construction and tests, First edition, August 1998, (E)” is revised as the entry “ISO 11117:2008/Cor 1:2009 Gas cylinders—Valve protection caps and valve guards—Design, construction and tests, May 5, 2009, Second edition” and the entries “ISO 4126-7: Safety valves—Part 7: Common data/Cor 1, October 23, 2006, First edition,” “ISO 13340 Transportable gas cylinders—Cylinders valves for non-refillable cylinders—Specification and prototype testing, April 5, 2001, First edition” are added; and
d. Under the entry for “Transport Canada,” the entry “Transportation of Dangerous Goods Regulations (Transport Canada TDG Regulations)” is revised; and
e. Under the entry “United Nations,” the entry “UN Recommendations on the Transport of Dangerous Goods, Model Regulations” and “UN Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria” are revised.
The additions and revisions read as follows:
(a) * * *
(3) * * *
3. In § 171.8, the definition of “Flexible bulk container” is added in the appropriate alphabetical sequence to read as follows:
4. The authority citation for part 172 continues to read as follows:
49 U.S.C. 5101-5128; 44701; 49 CFR 1.53.
5. In § 172.101, paragraph (c)(10)(i), the first sentence in paragraph (c)(10)(iii) and paragraph (k) are revised to read as follows:
(c) * * *
(10)
(i) A mixture or solution meeting the definition of one or more hazard class that is not identified specifically by name, comprised of a single predominant hazardous material identified in the Table by technical name and one or more hazardous and/or non-hazardous material, must be described using the proper shipping name of the hazardous material and the qualifying word “mixture” or “solution”, as appropriate, unless—
(iii) A mixture or solution meeting the definition of one or more hazard class that is not identified in the Table specifically by name, comprised of two or more hazardous materials in the same hazard class, must be described using an appropriate shipping description (e.g., “Flammable liquid, n.o.s.”). * * *
(k) Column 10: Vessel stowage requirements. Column 10A [Vessel stowage] specifies the authorized stowage locations on board cargo and passenger vessels. Column 10B [Other provisions] specifies codes for stowage requirements for specific hazardous materials. The meaning of each code in Column 10B is set forth in § 176.84 of this subchapter. Section 176.63 of this subchapter sets forth the physical requirements for each of the authorized locations listed in Column 10A. (For bulk transportation by vessel, see 46 CFR parts 30 to 40, 70, 98, 148, 151, 153 and 154.) The authorized stowage locations specified in Column 10A are defined as follows:
(1) Stowage category “A” means the material may be stowed “on deck” or “under deck” on a cargo vessel and on a passenger vessel.
(2) Stowage category “B” means—
(i) The material may be stowed “on deck” or “under deck” on a cargo vessel and on a passenger vessel carrying a number of passengers limited to not more than the larger of 25 passengers, or one passenger per each 3 m of overall vessel length; and
(ii) “On deck only” on passenger vessels in which the number of passengers specified in paragraph (k)(2)(i) of this section is exceeded.
(3) Stowage category “C” means the material must be stowed “on deck only” on a cargo vessel and on a passenger vessel.
(4) Stowage category “D” means the material must be stowed “on deck only” on a cargo vessel and on a passenger vessel carrying a number of passengers limited to not more than the larger of 25 passengers or one passenger per each 3 m of overall vessel length, but the material is prohibited on a passenger vessel in which the limiting number of passengers is exceeded.
(5) Stowage category “E” means the material may be stowed “on deck” or “under deck” on a cargo vessel and on a passenger vessel carrying a number of passengers limited to not more than the larger of 25 passengers, or one passenger per each 3 m of overall vessel length, but is prohibited from carriage on a passenger vessel in which the limiting number of passengers is exceeded.
(6) Stowage category “01” means the material may be stowed “on deck” in closed cargo transport units or “under deck” on a cargo vessel (up to 12 passengers) and on a passenger vessel.
(7) Stowage category “02” means the material may be stowed “on deck” in closed cargo transport units or “under deck” on a cargo vessel (up to 12 passengers) and “on deck” in closed cargo transport units or “under deck” in closed cargo transport units on a passenger vessel.
(8) Stowage category “03” means the material may be stowed “on deck” in closed cargo transport units or “under deck” on a cargo vessel (up to 12 passengers) but the material is prohibited on a passenger vessel.
(9) Stowage category “04” means the material may be stowed “on deck” in closed cargo transport units or “under deck” in closed cargo transports on a cargo vessel (up to 12 passengers) but the material is prohibited on a passenger vessel.
(10) Stowage category “05” means the material may be stowed “on deck” in closed cargo transport units on a cargo vessel (up to 12 passengers) but the material is prohibited on a passenger vessel.
6. In § 172.101, the Hazardous Materials Table is amended by removing the entries under “[REMOVE]”, by adding the entries under “[ADD]” and revising entries under “[REVISE]” in the appropriate alphabetical sequence to read as follows:
7. In § 172.102:
a. In paragraph (c)(1), special provisions 47, 48, 49, 118, 134, 155, and 237 are revised and special provisions 101, 238, 328, 360, 361, 362, 363 and 365 are added.
b. In paragraph (c)(2), special provisions A60, A100 and A103 are revised and special provisions A189, A192, and A200 is added.
c. In paragraph (c)(3), special provision B120 is added.
d. In paragraph (c)(4), Table 1 is revised.
e. Paragraph (c)(7)(iii) is revised.
f. In paragraph (c)(8)(ii), TP39, TP40 and TP41 are added in numerical sequence.
g. In paragraph (c)(9), W10 is added in numerical sequence.
The additions and revisions are to read as follows:
(c) * * *
(1) * * *
47 Mixtures of solids that are not subject to this subchapter and flammable liquids may be transported under this entry without first applying the classification criteria of Division 4.1, provided there is no free liquid visible at the time the material is loaded or at the time the packaging or transport unit is closed. Except when the liquids are fully absorbed in solid material contained in sealed bags, for single packagings, each packaging must correspond to a design type that has passed a leakproofness test at the Packing Group II level. Small inner packagings consisting of sealed packets and articles containing less than 10 mL of a Class 3 liquid in Packing Group II or III absorbed onto a solid material are not subject to this subchapter provided there is no free liquid in the packet or article.
48 Mixtures of solids that are not subject to this subchapter and toxic liquids may be transported under this entry without first applying the classification criteria of Division 6.1, provided there is no free liquid visible at the time the material is loaded or at the time the packaging or transport unit is closed. For single packagings, each packaging must correspond to a design type that has passed a leakproofness test at the Packing Group II level. This entry may not be used for solids containing a Packing Group I liquid.
49 Mixtures of solids that are not subject to this subchapter and corrosive liquids may be transported under this entry without first applying the classification criteria of Class 8, provided there is no free liquid visible at the time the material is loaded or at the time the packaging or transport unit is closed. For single packagings, each packaging must correspond to a design type that has passed a leakproofness test at the Packing Group II level.
101 The name of the particular substance or article must be identified in parentheses in association with the basic description.
118 This substance may not be transported under the provisions of Division 4.1 unless specifically authorized by the Associate Administrator (see UN0143 or UN0150 as appropriate).
134 This entry only applies to vehicles powered by wet batteries, sodium batteries, or lithium batteries and equipment powered by wet batteries or sodium batteries that are transported with these batteries installed. For the purpose of this special provision, vehicles are self-propelled apparatus designed to carry one or more persons or goods. Examples of such vehicles are electrically-powered cars, motorcycles, scooters, three- and four-wheeled vehicles or motorcycles, battery-assisted bicycles, lawn tractors, boats, aircraft, wheelchairs and other mobility aids. Examples of equipment are lawnmowers, cleaning machines or model boats and model aircraft. Equipment powered by lithium batteries must be consigned under the entries “Lithium batteries contained in equipment” or “Lithium batteries packed with equipment,” as appropriate. Self-propelled vehicles that also contain an internal combustion engine must be consigned under the entry “Engine, internal combustion, flammable gas powered” or “Engine, internal combustion, flammable liquid powered” or “Vehicle, flammable gas powered” or “Vehicle, flammable liquid powered,” as appropriate. These entries include hybrid electric vehicles powered by both an internal combustion engine and batteries. Additionally, self-propelled vehicles or equipment that contain a fuel cell engine must be consigned under the entries “Engine, fuel cell, flammable gas powered” or “Engine, fuel cell, flammable liquid powered” or “Vehicle, fuel cell, flammable gas powered” or “Vehicle, fuel cell, flammable liquid powered,” as appropriate. These entries include hybrid electric vehicles powered by a fuel cell engine, an internal combustion engine, and batteries.
155 Fish meal, fish scrap and krill meal may not be transported if the temperature at the time of loading either exceeds 35 °C (95 °F), or exceeds 5 °C (41 °F) above the ambient temperature, whichever is higher.
237 “Batteries, dry, containing potassium hydroxide solid,
238 Neutron radiation detectors:
a. Neutron radiation detectors containing non-pressurized boron trifluoride gas in excess of 1 gram and radiation detection systems containing such neutron radiation detectors as components may be transported by highway, rail, vessel, or cargo aircraft in accordance with the following:
(1) The pressure in each neutron radiation detector must not exceed 105 kPa absolute at 20°C;
(2) The amount of gas must not exceed 12.8 grams per detector and the amount per outer packaging or per radiation detection system must not exceed 51.2 grams;
(3) Each neutron radiation detector must be of welded metal construction with brazed metal to ceramic feed through assemblies. They must have a minimum burst pressure of 1800 kPa; and
(4) Each neutron radiation detector must be packed in a sealed intermediate plastic liner with sufficient absorbent material to absorb the entire gas contents. Neutron radiation detectors must be packed in strong outer packagings that are capable of withstanding a 1.8 meter (6-foot) drop without leakage. Radiation detector systems containing neutron radiation detectors must also include absorbent material sufficient to absorb the entire gas contents of the neutron radiation detectors. Absorbent material must be surrounded by a liner or liners, as appropriate. They must be packed in strong outer packagings unless neutron radiation detectors are afforded equivalent protection by the radiation detection system.
b. Except for transportation by aircraft, neutron radiation detectors and radiation detection systems containing such detectors transported in accordance with paragraph (a) of this
c. When transported by highway, rail, vessel, or as cargo on an aircraft, neutron radiation detectors containing not more than 1 gram of boron trifluoride, including those with solder glass joints, and radiation detection systems containing such detectors, where the neutron radiation detectors meet and are packed in accordance with the requirements of paragraph (a) of this special provision, are not subject to any other requirements of this subchapter.
328 When lithium cells or batteries are contained in the fuel cell system, the item must be described under this entry and the entry “Lithium batteries, contained in equipment”.
360 Vehicles only powered by lithium batteries must be assigned the identification number UN3171.
361 Capacitors with an energy storage capacity of 0.3 Wh or less are not subject to the requirements of this subchapter. Energy storage capacity means the energy held by a capacitor, as calculated using the nominal voltage and capacitance. This entry does not apply to capacitors that by design maintain a terminal voltage (e.g., asymmetrical capacitors.)
362 This entry applies to liquids, pastes or powders, pressurized with a propellant that meets the definition of a gas in § 173.115. A chemical under pressure packaged in an aerosol dispenser must be transported under UN1950. The chemical under pressure must be classed based on the hazard characteristics of the components in the propellant; the liquid; or the solid. The following provisions also apply:
(a) If one of the components, which can be a pure substance or a mixture, is classed as flammable, the chemical under pressure must be classed as flammable in Division 2.1. Flammable components are flammable liquids and liquid mixtures, flammable solids and solid mixtures or flammable gases and gas mixtures meeting the following criteria:
(i) A flammable liquid is a liquid having a flashpoint of not more than 93 °C (200 °F);
(ii) A flammable solid is a solid that meets the criteria in § 173.124 of this subchapter; or
(iii) A flammable gas is a gas that meets the criteria in § 173.115 of this subchapter.
(b) Gases of Division 2.3 and gases with a subsidiary risk of 5.1 must not be used as a propellant in a chemical under pressure.
(c) Where the liquid or solid components are classed as Division 6.1, packing groups II or III, or Class 8, packing groups II or III, the chemical under pressure must be assigned a subsidiary risk of Division 6.1 or Class 8 and the appropriate identification number must be assigned. Components classed as Division 6.1, packing group I, or Class 8, packing group I, must not be offered for transportation and transported under this description.
(d) A chemical under pressure with components meeting the properties of: Class 1 (explosives); Class 3 (liquid desensitized explosives); Division 4.1 (self-reactive substances and solid desensitized explosives); Division 4.2 (substances liable to spontaneous combustion); Division 4.3 (substances which, in contact with water, emit flammable gases or toxic gases); Division 5.1 (oxidizing substances); Division 5.2 (organic peroxides); Division 6.2 (Infectious substances); or, Class 7 (Radioactive material), must not be offered for transportation under this description.
(e) A description to which Special provision 170 or TP7 is assigned in Column 7 of the § 172.101 Hazardous Materials Table, and therefore requires air to be eliminated from the package vapor space by nitrogen or other means, must not be offered for transportation under this description.
363 For transportation by vessel, this description is applicable to hazardous materials above the authorized limited quantity amount in its means of containment (other than vehicles or means of containment shipped under special provision 136) integral to equipment or machinery (e.g., generators, compressors, heating units, etc.) as part of their original design type. Provided the equipment or machinery conforms to the following conditions, they are not subject to any additional requirements of this subchapter:
(b) Any valves or openings (e.g., venting devices) in its means of containment containing hazardous materials must be closed during transport;
(c) The machinery or equipment must be loaded in an orientation to prevent inadvertent leakage of hazardous materials and must be secured by means capable of restraining the machinery or equipment to prevent any movement during transport that would change the orientation or cause it to be damaged;
(d) Where its means of containment has a capacity of not more than 450 liters (119 gallons), the labeling requirements of subpart E of part 172 apply and where its capacity is greater than 450 liters (119 gallons) but not more than 1,500 liters (396.25 gallons) the machinery or equipment must be labeled on all four external sides in accordance with the labeling requirements of subpart E of part 172;
(e) Where its means of containment has a capacity greater than 1,500 liters (396 gallons), the machinery or equipment must be placarded on all four external sides in accordance with subpart F of part 172; and
(f) The shipping paper requirements of subpart C of part 172 apply.
365 For manufactured instruments and articles containing mercury, see UN3506.
(2) * * *
A60 Sterilization devices, when containing less than 30 mL per inner packaging with not more than 150 mL per outer packaging, may be transported in accordance with the provisions in § 173.4a, irrespective of § 173.4a(b), provided such packagings were first subjected to comparative fire testing. Comparative fire testing between a package as prepared for transport (including the substance to be transported) and an identical package filled with water must show that the maximum temperature measured inside the packages during testing does not differ by more than 200 °C (392 °F). Packagings may include a vent to permit the slow escape of gas (i.e. not more than 0.1 mL/hour per 30 mL inner packaging at 20°C (68 °F) produced from gradual decomposition.
A100 Primary (non-rechargeable) lithium batteries and cells are forbidden for transport aboard passenger-carrying aircraft. Secondary (rechargeable) lithium batteries and cells are authorized aboard passenger-carrying aircraft provided the net weight of lithium batteries does not exceed 5 kg (11 pounds) per package.
A103 Equipment is authorized aboard passenger-carrying aircraft provided the net weight of lithium batteries does not exceed 5 kg (11 pounds) per package.
A189 Except where the defining criteria of another class or division are met, concentrations of formaldehyde solution:
a. With less than 25 percent but not less than 10 percent formaldehyde, must be described as UN3334, Aviation regulated liquid, n.o.s.; and
b. With less than 10 percent formaldehyde, are not subject to this subchapter.
A192 Notwithstanding the Division 6.1 subsidiary risk for this description, the toxic subsidiary risk label and the requirement to indicate the subsidiary risk on the shipping paper are not required for manufactured articles containing less than 0.45 kg (1 pound) of mercury.
A200 These articles must be transported as cargo and may not be carried aboard an aircraft by passengers or crewmembers in carry-on baggage, checked baggage, or on their person unless specifically authorized in § 175.10.
(3) * * *
B120 The use of flexible bulk containers conforming to the requirements in subpart R and subpart S of part 178 of this subchapter is permitted.
(4) * * *
(7) * * *
(iii) T50 When portable tank instruction T50 is indicated in Column (7) of the
(8) * * *
(ii) * * *
TP39 The portable tank instruction T4 prescribed may continue to be applied until December 31, 2018.
TP40 The portable tank must not be transported when connected with spray application equipment.
TP41 The portable tank instruction T9 may continue to be applied until December 31, 2018.
(9) * * *
W10 When offered for transportation by vessel, the use of Large Packagings (see § 171.8 of this subchapter) is prohibited.
8. In § 172.202, paragraph (a)(6)(iv) is revised to read as follows:
(a) * * *
(6) * * *
(vii) For hazardous materials in limited quantities with a 30 kg gross limit in Column (9A) or (9B) of the § 172.101 Hazardous Materials Table, where different hazardous materials are packed together in the same outer packaging, the net quantity of each hazardous material followed by the gross mass of the completed package is indicated and:
9. In § 172.301, paragraph (a)(1) is revised to read as follows:
(a) Proper shipping name and identification number. (1) Except as otherwise provided by this subchapter, each person who offers a hazardous material for transportation in a non-bulk packaging must mark the package with the proper shipping name and identification number (preceded by “UN”, “NA” or “ID,” as appropriate) for the material as shown in the § 172.101 Hazardous Materials Table. Effective January 1, 2014 the identification number marking preceded by “UN”, “NA”, or “ID” as appropriate must be marked in characters at least 12 mm (0.47 inches) high. Packages with a maximum capacity of 30 liters (7.92 gallons) or 30 kg (66 pounds) capacity or less must be marked with characters at least 6 mm high. Packages having a maximum capacity 5 liters (1.32 gallons) or 5 kg (11 pounds) or less must be marked in a size appropriate for the size of the package.
10. In § 172.312, paragraph (c)(3) is revised to read as follows:
(c) * * *
(3) When offered or intended for transportation by aircraft, packages containing liquid hazardous materials in inner packagings of 120 mL (4 fluid oz.) or less when packed with sufficient absorption material between the inner and outer packagings to completely absorb the liquid contents.
11. In § 172.604, paragraph (d)(2) is revised to read as follows.
(d) * * *
(2) Materials properly described under the following shipping names:
12. The authority citation for part 173 continues to read as follows:
49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.
13. In § 173.12, paragraph (b)(2)(ii)(A) is revised to read as follows:
(b) * * *
(2) * * *
(ii) * * *
(A) A UN 1A2, UN 1B2 or UN 1N2 metal drum, a UN 1D plywood drum, a UN 1G fiber drum, or a UN 1H2 plastic drum, tested and marked to at least the Packing Group III performance level for liquids or solids;
14. In § 173.21, paragraph (f)(3)(ii) is revised to read as follows:
(f) * * *
(3) * * *
(ii) For transportation by vessel, shipments are authorized in accordance with the control temperature requirements in 7.3.7 of the IMDG Code (IBR, see § 171.7 of this subchapter).
15. Section § 173.37 is added to read as follows:
(a) No person may offer or accept a hazardous material for transportation in a Flexible Bulk Container except as authorized by this subchapter. Each Flexible Bulk Container used for the transportation of hazardous materials must conform to the requirements of its specification and regulations for the transportation of the particular commodity.
(b)
(1) The Flexible Bulk Container is free from corrosion, contamination, cracks, cuts, or other damage that would render it unable to pass the prescribed design type test to which it is certified and marked; and
(2) The Flexible Bulk Container is marked in accordance with requirements in § 178.1010 of this subchapter. Required markings that are missing, damaged or difficult to read must be restored or returned to original condition.
(3) The following components must be examined to determine structural serviceability:
(i) Textile slings;
(ii) Load-bearing structure straps;
(iii) Body fabric; and
(iv) Lock device parts including metal and textile parts are free from protrusions or damage.
(4) The use of Flexible Bulk Containers for the transport of hazardous materials is permitted for a period of time not to exceed two years from the date of manufacture of the Flexible Bulk Container.
(c) During transportation—
(1) No hazardous material may remain on the outside of the Flexible Bulk Container; and
(2) Each Flexible Bulk Container must be securely fastened to or contained within the transport unit.
(3) If restraints such as banding or straps are used, these straps must not be over-tightened to an extent that causes damage or deformation to the Flexible Bulk Container.
(4) Flexible Bulk Containers must be transported in a conveyance with rigid sides and ends that extend at least two-thirds of the height of the Flexible Bulk Container.
(5) Flexible Bulk Containers must not be stacked for highway or rail transportation.
(6) Flexible Bulk Containers must not be transported in cargo transport units when offered for transportation by vessel.
(7) Flexible Bulk Containers when transported by barge must be stowed in such a way that there are no void spaces between the Flexible Bulk Containers in the barge. If the Flexible Bulk Containers do not completely fill the barge, adequate measures must be taken to avoid shifting of cargo. The maximum permissible height of the stack of Flexible Bulk Containers must not exceed 3 high.
(d) A Flexible Bulk Container used to transport hazardous materials may not exceed 15 cubic meters capacity.
16. In § 173.50, paragraph (b)(6) is revised as follows.
(b) * * *
(6) Division 1.6 consists of extremely insensitive articles that do not have a mass explosive hazard. This division is comprised of articles that contain only extremely insensitive substances and that demonstrate a negligible probability of accidental initiation or propagation.
17. In § 173.52, in paragraph (b), in Table 1, the entry in the twelfth row is revised to read as follows:
(b) * * *
18. In § 173.59:
a. The word “detonating” is removed from the definition of
b. The definition of
c. The definition of “
d. The definition of “
e. The definition of “
The revision and additions are as follows:
19. In § 173.62, in paragraph (c), in the Table of Packing Methods, Packing Instructions 110(a), 111, 112(a), 112(b), 112(c), 113, 114(a), 114(b), 115, 116, 117, 130, 131, 132(a), 132(b), 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143 and 144 are revised to read as follows:
(c) * * *
20. In § 173.63, paragraph (b) is revised to read as follows:
(b)
(ii) Until December 31, 2012, a package containing such articles may be marked with the proper shipping name “Cartridges, small arms” or “Cartridges for tools, blank
(iii) Cartridges, small arms and Cartridges for tools, blank (used to project fastening devices) that may be shipped as a limited quantity or ORM-D material are as follows:
(A) Ammunition for rifle, pistol or shotgun;
(B) Ammunition with inert projectiles or blank ammunition;
(C) Ammunition having no tear gas, incendiary, or detonating explosive projectiles;
(D) Ammunition not exceeding 12.7 mm (50 caliber or 0.5 inch) for rifle or pistol, cartridges or 8 gauge for shotshells; and
(E) Cartridges for tools, blank that are used to project fastening devices.
(2) Packaging for Cartridges, small arms and Cartridges for tools, blank (used to project fastening devices) as limited quantity or ORM-D material must be as follows:
(i) Ammunition must be packed in inside boxes, or in partitions that fit snugly in the outside packaging, or in metal clips;
(ii) Primers must be protected from accidental initiation;
(iii) Inside boxes, partitions or metal clips must be packed in securely-closed strong outside packagings;
(iv) Maximum gross weight is limited to 30 kg (66 pounds) per package; and
(v) Cartridges for tools, blank that are used to project fastening devices and 22 caliber rim-fire cartridges may be packaged loose in strong outside packagings.
21. In § 173.115, in paragraph (k), the wording “ISO 10156:1996 and ISO 10156-2:2005” is removed and replaced with the wording “ISO 10156:2010”.
22. In § 173.121, paragraph (b)(iii) is revised to read as follows:
(b) * * *
(iii) The capacity of the packaging is not more than 30 L (7.9 gallons); except that for transportation by highway, rail or cargo aircraft, the capacity of the package is not more than 100 L (26.3 gallons); and
23. In § 173.134, paragraph (b)(12) is revised to read as follows.
(b) * * *
(12) * * *
(i) Medical equipment which has been drained of free liquid.
(ii) Laundry or medical equipment conforming to the regulations of the Occupational Safety and Health Administration of the Department of Labor in 29 CFR 1910.1030. This exception includes medical equipment intended for use, cleaning, or refurbishment, such as reusable surgical equipment, or equipment used for testing where the components within which the equipment is contained essentially function as packaging. This exception does not apply to medical equipment being transported for disposal.
(iii) Medical devices or equipment potentially contaminated with or containing infectious substances which are being transported for disinfection, cleaning, sterilization, repair or equipment evaluation if packed in a leakproof packaging designed and constructed to assure that it remains intact under conditions normally incident to transportation. This exception does not apply to medical devices or equipment being transported for disposal, or to medical devices or equipment contaminated with or suspected of contamination with a Category A infectious substance.
(A) As applicable, packagings must be designed to meet the construction requirements of subpart L or subpart P of part 178 of this subchapter except for §§ 178.503 and 178.910. In addition, these packagings must meet the general packaging requirements of § 173.24(a), (b), and (e), and be capable of retaining the medical devices and equipment when dropped from a height of 1.2 m (4 feet).
(B) The packagings may be marked “USED MEDICAL DEVICE” or “USED MEDICAL EQUIPMENT”. When an overpack is used, the overpack may be marked “USED MEDICAL DEVICE” or “USED MEDICAL EQUIPMENT”.
(iv) Used health care products not conforming to the requirements in 29 CFR 1910.1030 and being returned to the manufacturer or the manufacturer's designee are excepted from the requirements of this subchapter when offered for transportation or transported in accordance with this paragraph (b)(12). For purposes of this paragraph, a health care product is used when it has been removed from its original packaging. Used health care products contaminated with or suspected of contamination with a Category A infectious substance may not be transported under the provisions of this paragraph.
24. In § 173.158, paragraphs (d)(2), (e), (f)(3), (g) and (h) are revised to read as follows:
(d) * * *
(2) In combination packagings with 1A2, 1B2, 1N2, 1D, 1G, 1H2, 3H2, 4A, 4B, 4N or 4G outer packagings with inner glass packagings of 2.5 L (0.66 gallons) or less capacity cushioned with a non-reactive, absorbent material and packed within a tightly closed intermediate packaging of metal or plastic.
(e) Nitric acid of less than 90 percent concentration, when offered for transportation or transported by rail, highway, or water may be packaged in 4A, 4B, or 4N metal boxes, 4G fiberboard boxes or 4C1, 4C2, 4D or 4F wooden boxes with inside glass packagings of not over 2.5 L (0.66 gallon) capacity each.
(f) * * *
(3) In combination packagings with 1A2, 1B2, 1N2, 1D, 1G, 1H2, 3H2, 4C1, 4C2, 4D, 4F, 4G, 4A, 4B or 4N outer packagings and plastic inner packagings not over 2.5 L (0.66 gallon) capacity further individually overpacked in tightly closed metal packagings.
(g) Nitric acid of more than 70 percent concentration, when offered for transportation or transported by cargo aircraft only, must be packaged in combination packagings with 1A2, 1B2, 1N2, 1D, 1G, 1H2, 3H2, 4C1, 4C2, 4D, 4F, 4G, 4A, 4B or 4N outer packagings with glass or earthenware inner packagings of not over 1 L (0.3 gallon) or glass ampoules of not over 0.5 L (0.1 gallon).
(h) Nitric acid of less than 70 percent concentration, when offered for transportation in cargo aircraft only must be packaged in combination packagings with 1A2, 1B2, 1N2, 1D, 1G, 1H2, 3H2, 4C1, 4C2, 4D, 4F, 4G, 4A, 4B or 4N outer packagings with inner packagings of—
25. In § 173.159a:
a. In paragraph (d)(1), the last word “and” is removed.
b. In paragraph (d)(2), the period is removed at the end of the sentence and the wording “; and” is added in its place.
c. New paragraph (d)(3) is added to read as follows:
(d) * * *
(3) For transport by aircraft, must be transported as cargo.
26. Section 173.160 is revised to read as follows:
Bombs, smoke, non-explosive may be shipped provided they are without ignition elements, bursting charges, detonating fuses or other explosive components. They must be packaged in metal (4A, 4B, 4N), wooden (4C1, 4C2),
27. In § 173.162, paragraphs (a) and (c) are revised to read as follows:
(a) * * *
(1) In combination packagings intended to contain liquids consisting of glass, earthenware or rigid plastic inner packagings with a maximum net mass of 15 kg (33 pounds) each. The inner packagings must be packed in wood boxes (4C1, 4C2, 4D, 4F), fiberboard boxes (4G), plastic boxes (4H1, 4H2), fiber drums (1G) or steel, metal, other than steel or aluminum, and plastic drums or jerricans (1A1, 1A2, 1N1, 1N2, 1H1, 1H2, 3A2 or 3H2) with sufficient cushioning materials to prevent breakage. Either the inner packagings or the outer packagings must have an inner liner that is leakproof or bags of strong leakproof and puncture-resistant material impervious to the contents and completely surrounding the contents to prevent it from escaping from the package, irrespective of its position.
(2) In packagings intended to contain liquids consisting of semi-rigid plastic inner packagings of not more than 2.5 kg (5.5 pounds) net capacity each, individually enclosed in a sealed, leak-tight bag of strong puncture-resistant material. The sealed bags must be packed in wooden (4C1, 4C2), plywood (4D), reconstituted wood (4F), fiberboard (4G), plastic (4H1, 4H2) or metal, other than steel or aluminum (4N) boxes or in fiber (1G), steel (1A1, 1A2), metal, other than steel or aluminum (1N1, 1N2), or plastic (1H1 or 1H2) drums, that are lined with leak-tight, puncture-resistant material. Bags and liner material must be chemically resistant to gallium.
(c) Manufactured articles or apparatuses, each containing not more than 100 mg (0.0035 ounce) of gallium and packaged so that the quantity of gallium per package does not exceed 1 g (0.35 ounce) are not subject to the requirements of this subchapter. For transportation by aircraft, such articles and apparatuses must be transported as cargo.
28. In § 173.164, paragraphs (a)(1), (a)(5), (b), and (c)(2) are revised and paragraph (f) is added to read as follows:
(a) * * *
(1) In inner packagings of earthenware, glass or plastic containing not more than 3.5 kg (7.7 pounds) of mercury, or inner packagings that are glass ampoules containing not more than 0.5 kg (1.1 pounds) of mercury, or iron or steel quicksilver flasks containing not more than 35 kg (77 pounds) of mercury. The inner packagings or flasks must be packed in steel drums (1A1, 1A2), metal, other than steel or aluminum drums (1N1, 1N2), steel jerricans (3A2), wooden boxes (4C1, 4C2), plywood boxes (4D), reconstituted wood boxes (4F), fiberboard boxes (4G), metal, other than steel or aluminum boxes (4N), plastic boxes (4H2), plywood drums (1D) or fiber drums (1G).
(5) When transported as cargo, lamps are excepted from the requirements of this subchapter provided, each lamp contains not more than 1 g of mercury and is packaged so that there is not more than 30 g of mercury per package. Packages must be so designed and constructed such that when dropped from a height of not less than 0.5 meter (1.5 feet) the packages must still be fit for transport and there must be no damage to the contents.
(b) When transported as cargo, manufactured articles or apparatuses, each containing not more than 100 mg (0.0035 ounce) of mercury and packaged so that the quantity of mercury per package does not exceed 1 g (0.035 ounce) are not subject to the requirements of this subchapter.
(c) * * *
(2) When transported as cargo, thermometers, switches and relays, each containing a total quantity of not more than 15 g (0.53 ounces) of mercury, are excepted from the requirements of this subchapter if installed as an integral part of a machine or apparatus and so fitted that shock of impact damage, leading to leakage of mercury, is unlikely to occur under conditions normally incident to transport.
(f) For vessel transport, manufactured articles or instruments containing less than 0.45 kg (1.0 pound) of mercury are not subject to the requirements of this subchapter.
29. Section 173.165 is revised to read as follows:
(a) Polyester resin kits consisting of a base material component (Class 3, Packing Group II or III) and an activator component (Type D, E, or F organic peroxide that does not require temperature control)—
(1) The organic peroxide component must be packed in inner packagings not over 125 mL (4.22 fluid ounces) net capacity each for liquids or 500 g (17.64 ounces) net capacity each for solids.
(2)(i) Except for transportation by aircraft, the flammable liquid component must be packaged in suitable inner packagings.
(ii) For transportation by aircraft, a Packing Group II base material is limited to a quantity of 5 L (1.3 gallons) in metal or plastic inner packagings and 1 L (0.3 gallons) in glass inner packagings. A Packing Group III base material is limited to a quantity of 10 L (2.6 gallons) in metal or plastic inner packagings and 2.5 L (0.66 gallons) in glass inner packagings.
(3) If the flammable liquid component and the organic peroxide component will not interact dangerously in the event of leakage, they may be packed in the same outer packaging.
(4) The Packing Group assigned will be II or III, according to the criteria for Class 3, applied to the base material. Additionally, polyester resin kits must be packaged in specification combination packagings, based on the performance level required of the base material (II or III) contained within the kit, as prescribed in §§ 173.202 or 173.203 of this subchapter, as appropriate.
(5) For transportation by aircraft, the following additional requirements apply:
(i) Closures on inner packagings containing liquids must be secured by secondary means;
(ii) Inner packagings containing liquids must be capable of meeting the pressure differential requirements prescribed in § 173.27(c); and
(iii) The total quantity of activator and base material may not exceed 5 kg (11 lbs) per package for a Packing Group II base material. The total quantity of activator and base material may not exceed 10 kg (22 lbs) per package for a Packing Group III base material. The total quantity of polyester resin kits per package is calculated on a one-to-one basis (i.e., 1 L equals 1 kg).
(b) Polyester resin kits are eligible for the Small Quantity exceptions in § 173.4 and the Excepted Quantity exceptions in § 173.4a, as applicable.
(c)
(1) For other than transportation by aircraft, the organic peroxide component must be packed in inner packagings not over 125 mL (4.22 fluid ounces) net capacity each for liquids or 500 g (17.64 ounces) net capacity each for solids. For transportation by aircraft, the organic peroxide component must be packed in inner packagings not over 30 mL (4.22 fluid ounces) net capacity each for liquids or 100 g (17.64 ounces) net capacity each for solids.
(2) Except for transportation by aircraft, the flammable liquid component must be packed in inner packagings not over 5 L (1.3 gallons) net capacity each for a Packing Group II and Packing Group III liquid. For transportation by aircraft, the flammable liquid component must be packed in inner packagings not over 1 L (0.26 gallons) net capacity each for a Packing Group II material. The flammable liquid component must be packed in metal or plastic inner packagings not over 5.0 L (1.3 gallons) net capacity each or glass inner packagings not over 2.5 L (0.66 gallons) net capacity each for a Packing Group III material.
(3) If the flammable liquid component and the organic peroxide component will not interact dangerously in the event of leakage, they may be packed in the same outer packaging.
(4) For transportation by aircraft, the following additional requirements apply:
(i) Closures on inner packagings containing liquids must be secured by secondary means as prescribed in § 173.27(d);
(ii) Inner packagings containing liquids must be capable of meeting the pressure differential requirements prescribed in § 173.27(c);
(iii) The total quantity of activator and base material may not exceed 1 kg (2.2 lbs) per package for a Packing Group II base material. The total quantity of activator and base material may not exceed 5 kg (11 lbs) per package for a Packing Group III base material. The total quantity of polyester resin kits per package is calculated on a one-to-one basis (i.e., 1 L equals 1 kg);
(iv)
(v)
(d)
30. In § 173.175, paragraph (g) is added to read as follows:
(g) For transportation by aircraft, permeation devices must be transported as cargo.
31. Section 173.176 is added to read as follows:
(a) Capacitors, including capacitors containing an electrolyte that does not meet the definition of any hazard class or division as defined in this part, must conform to the following requirements:
(1) Capacitors not installed in equipment must be transported in an uncharged state;
(2) Each capacitor must be protected against a potential short circuit hazard in transport as follows:
(i) Except for transport by air, when a capacitor's energy storage capacity is less than or equal to 10 Wh or when the energy storage capacity of each capacitor in a module is less than or equal to 10 Wh, the capacitor or module must be protected against short circuit or be fitted with a metal strap connecting the terminals; and
(ii) For transport by air, or when the energy storage capacity of a capacitor or a capacitor in a module is more than 10 Wh, the capacitor or module must be fitted with a metal strap connecting the terminals;
(3) Capacitors containing an electrolyte that meets the definition of one or more hazard class or division as defined in this part, must be designed to withstand a 95 kPa (0.95 bar, 14 psi) pressure differential;
(4) Capacitors must be designed and constructed to safely relieve pressure that may build up in use, through a vent or a weak point in the capacitor casing. Any liquid that is released upon venting must be contained by the packaging or by the equipment in which a capacitor is installed; and
(5) Capacitors must be marked with the energy storage capacity in Wh.
(b) Capacitors must be packed in strong outer packagings. For transport by air, capacitors must be securely cushioned within the outer packagings. Capacitors installed in equipment may be offered for transport unpackaged or on pallets, when the capacitors are afforded equivalent protection by the equipment in which they are contained.
(c) Capacitors containing an electrolyte not meeting the definition of any hazard class or division as defined in this part, including when installed in equipment, are not subject to any other requirements of this subchapter.
(d) Capacitors containing an electrolyte that meets the definition of one or more hazard class or division as defined in this part, with an energy storage capacity of 10 Wh or less are not subject to any other requirements of this subchapter, when they are capable of withstanding a 1.2 m (3.9 feet) drop test unpackaged onto a rigid, non-resilient, flat and horizontal surface without loss of contents.
(e) Capacitors containing an electrolyte meeting the definition of one or more hazard class or division as defined in this part, that are not installed in equipment, and with an energy storage capacity of more than 10 Wh are subject to the requirements of this subchapter.
(f) Capacitors installed in equipment and containing an electrolyte meeting the definition of one or more hazard class or division as defined in this part, are not subject to any other requirements of this subchapter, provided the equipment is packaged in a strong outer packaging and in such a manner as to prevent accidental functioning of the capacitors during transport. Large, robust equipment
32. In § 173.181, paragraphs (b) and (c) are revised to read as follows:
(b) Steel boxes (4A), aluminum boxes (4B), metal boxes, other than steel or aluminum (4N), wooden boxes (4C1, 4C2, 4D, or 4F) or fiberboard boxes (4G); steel drums (1A1 or 1A2), aluminum drums (1B1 or 1B2), metal drums, other than steel or aluminum (1N1 or 1N2), plywood drums (1D), or fiber drums (1G); or steel jerricans (3A1 or 3A2) or aluminum jerricans (3B1 or 3B2) enclosing not more than four strong, tight metal cans with inner receptacles of glass or metal, not over 1 L (0.3 gallon) capacity each, having positive screwcap closures adequately gasketed. Inner packagings must be cushioned on all sides with dry, absorbent, incombustible material in a quantity sufficient to absorb the entire contents. The strong, tight metal cans must be closed by positive means, not by friction.
(c) Steel drums (1A1 or 1A2), aluminum drums (1B1 or 1B2), metal drums, other than steel or aluminum(1N1 or 1N2) or fiber drums (1G); steel jerricans (3A1 or 3A2) or aluminum jerricans (3B1 or 3B2); or steel boxes (4A), aluminum boxes (4B) or metal boxes, other than steel or aluminum (4N) not exceeding 220 L (58 gallons) capacity each with strong, tight inner metal cans not over 4.0 L (1 gallon) capacity each. The strong, tight metal cans must be closed by positive means, not friction.
33. In § 173.183, paragraph (a) is revised to read as follows:
(a) In steel drums (1A2), aluminum drums (1B2), other metal drums (4A2), steel jerricans (3A2), aluminum jerricans (3B2), steel, aluminum or other metal (4A, 4B, 4N) boxes, wooden (4C1, 4C2), plywood (4D) or reconstituted wood (4F) boxes or plywood drums (1D) with each reel in a tightly closed metal can, polypropylene canister, or strong cardboard or fiberboard inner packaging with cover held in place by adhesive tape or paper; or
34. In § 173.184, paragraph (b) is revised to read as follows:
(b) Fusees (highway and railway) must be packaged in steel (1A2), aluminum (1B2) or other metal (1N2) drums, steel (3A2) or aluminum (3B2) jerricans, steel (4A), aluminum (4B) or other metal (4N) boxes, wooden (4C1, 4C2), plywood (4D) or reconstituted wood (4F) boxes or in fiberboard boxes (4G), plywood (1D) or fiber (1G) drums. If the fusees are equipped with spikes packagings must have reinforced ends to prevent penetration of spikes through the outer packagings; packages must be capable of passing drop test requirements (§ 178.603 of this subchapter), including at least one drop with spike in a downward position, and other requirements of part 178 of this subchapter, at the Packing Group II performance level.
35. In § 173.186, paragraph (e) is revised to read as follows:
(e) Packagings. Strike-anywhere matches must be tightly packed in securely closed chipboard, fiberboard, wooden, or metal inner packagings to prevent accidental ignition under conditions normally incident to transportation. Each inner packaging may contain no more than 700 strike-anywhere matches and must be packed in outer steel drums (1A1, 1A2), aluminum drums (1B1, 1B2), other metal drums (1N1, 1N2), steel jerricans (3A1, 3A2), aluminum jerricans (3B1, 3B2), steel (4A), aluminum (4N), other metal (4N) boxes, wooden (4C1, 4C2), plywood (4D), reconstituted wood (4F) or fiberboard (4G) boxes, plywood (1D) or fiber (1G) drums. Gross weight of fiberboard boxes (4G) must not exceed 30 kg (66 pounds). Gross weight of other outer packagings must not exceed 45 kg (100 pounds).
36. In § 173.187, paragraphs (a) and (d) are revised to read as follows:
(a) In steel, aluminum or other metal boxes (4A, 4B or 4N) and contain no more than 15 kg (33 pounds) each.
(d) In steel, aluminum or other metal drums (1A1, 1A2, 1B1, 1B2, 1N1 or 1N2) with a gross mass not exceeding 150 kg (331 pounds) per drum.
37. In § 173.188, paragraphs (a)(1), (a)(2), and (b)(1) are revised to read as follows:
(a) * * *
(1) Steel, aluminum or other metal boxes (4A, 4B or 4N) or wooden boxes (4C1, 4C2, 4D, or 4F) with:
(2) Steel, aluminum or other metal drums (1A1, 1B1 or 1N1) not over 250 L (66 gallons) capacity each or steel, aluminum or other metal drums (1A2, 1B2, or 1N2) not over 115 L (30 gallons) capacity each.
(b) * * *
(1) Steel, aluminum or other metal drums (1A2, 1B2 or 1N2) not over 115 L (30 gallons) capacity each, or
38. In § 173.189, paragraph (b) is revised to read as follows:
(b) Cells must be protected against short circuit and must consist of hermetically sealed metal casings that fully enclose the hazardous materials and that are so constructed and closed as to prevent the release of the hazardous materials under normal conditions of transport. Cells must be placed in suitable outer packagings with sufficient cushioning material to prevent contact between cells and between cells and the internal surfaces of the outer packaging, and to ensure that no dangerous shifting of the cells within the outer packaging occurs in transport. Cells must be packaged in 1A2, 1B2, 1N2, 1D, 1G, 1H2, 4A, 4B, 4N, 4C1, 4C2, 4D, 4F, 4G, 4H1, 4H2, 3A2, 3B2 or 3H2) outer packagings that meet the requirements of part 178 of this subchapter at the Packing Group II performance level.
39. In § 173.193, in paragraph (a), the first sentence is revised to read as follows:
(a) Bromoacetone must be packaged as follows in metal boxes (4A, 4B or 4N) or wooden boxes (4C1, 4C2, 4D or 4F) with inner glass receptacles or tubes in hermetically sealed metal receptacles in corrugated fiberboard cartons. * * *
40. In § 173.194, paragraphs (b)(1) and (b)(2) are revised to read as follows:
(b) * * *
(1) If the poisonous material does not exceed 5 mL (0.2 fluid ounce) if a liquid or 5 g (0.2 ounce) if a solid, it may be packed in glass inner receptacles of not
(2) If the poisonous material does not exceed 5 mL (0.2 fluid ounce) if a liquid or 20 g (0.7 ounce) if a solid, it may be packed in glass inner receptacles with screw-top closures of not less than 60 mL (2 fluid ounces), hermetically sealed. Twelve bottles containing poisonous material, not to exceed 100 mL (3.4 fluid ounces) or 100 g (3.5 ounces), or both, may be placed in a plastic carrying case, each glass receptacle surrounded by absorbent cushioning and each separated from the other by sponge rubber partitions. The plastic carrying case must be placed in a tightly fitting fiberboard box which in turn must be placed in a tightly fitting 4A, 4B or 4N metal box or 4C1, 4C2, 4D or 4F wooden box.
41. In § 173.196, paragraph (a)(3) is revised to read as follows:
(a) * * *
(3) A rigid outer packaging of adequate strength for its capacity, mass and intended use; including, drums (1A1, 1A2, 1B1, 1B2, 1N1, 1N2, 1H1, 1H2, 1D, 1G); boxes (4A, 4B, 4N, 4C1, 4C2, 4D, 4F, 4G, 4H1, 4H2); or jerricans (3A1, 3A2, 3B1, 3B2, 3H1, 3H2). The outer packaging must measure not less than 100 mm (3.9 inches) at its smallest overall external dimension.
42. In § 173.199, paragraph (d)(1) is revised to read as follows:
(d) * * *
(1) Ice or dry ice must be placed outside the secondary packaging or in an overpack. Interior supports must be provided to secure the secondary packagings in the original position. If ice is used, the outside packaging must be leakproof or must have a leakproof liner. If dry ice is used, the outside packaging must permit the release of carbon dioxide gas and otherwise meet the provisions in § 173.217. The primary receptacle and secondary packaging must maintain their integrity at the temperature of the refrigerant used, as well as the temperatures and pressures of transport by aircraft they could be subjected to if refrigeration were lost, and sufficient absorbent material must be provided to absorb all liquid, including melted ice.
43. In § 173.201, in the paragraph (b) list, the wording “Metal box other than steel or aluminum: 4N” is added between the entry “Solid plastic box: 4H2” and the entry “Inner packagings:”.
44. In § 173.202, in the paragraph (b) list, the wording “Metal box other than steel or aluminum: 4N” is added between the entry “Solid plastic box: 4H2” and the entry “Inner packagings:”.
45. In § 173.203, in the paragraph (b) list, the wording “Metal box other than steel or aluminum: 4N” is added between the entry “Solid plastic box: 4H2” and the entry “Inner packagings:”.
46. Section 173.211 is amended as follows:
a. In the paragraph (b) list, the wording “Metal box other than steel or aluminum: 4N” is added between the entry “Solid plastic box: 4H2” and the entry “Inner packagings:”.
b. In the paragraph (c) list, the wording “Metal box other than steel or aluminum with liner: 4N” is added between the entry “Aluminum box with liner: 4B” and the entry “Natural wood box, sift proof: 4C2”.
47. Section 173.212 is amended as follows:
a. In the paragraph (b) list, the wording “Metal box other than steel or aluminum: 4N” is added between the entry “Solid plastic box: 4H2” and the entry “Inner packagings:”.
b. In the paragraph (c) list, the wording “Metal box other than steel or aluminum with liner: 4N” is added between the entry “Aluminum box with liner: 4B” and the entry “Natural wood box, sift proof: 4C2”.
48. Section 173.213 is amended as follows:
a. In the paragraph (b) list, the wording “Metal box other than steel or aluminum: 4N” is added between the entry “Solid plastic box: 4H2” and the entry “Inner packagings:”.
b. In the paragraph (c) list, the wording “Metal box other than steel or aluminum with liner: 4N” is added between the entry “Aluminum box with liner: 4B” and the entry “Natural wood box, sift proof: 4C2”.
49. In § 173.219, paragraphs (b)(1), (c)(1), and (c)(5) are revised to read as follows:
(b) * * *
(1) Division 2.2 compressed or liquefied gases must be packaged in cylinders in accordance with the requirements of this subchapter;
(c) * * *
(1) Division 2.2 compressed or liquefied gases must be packaged in cylinders in accordance with the requirements of this subchapter;
(5) Life-saving appliances containing no hazardous materials other than cylinders of Division 2.2 compressed or liquefied gases with no subsidiary risk, with a capacity not exceeding 120 ml, installed solely for the purpose of activating the appliance, are not subject to the provisions of this subchapter provided they are overpacked in rigid outer packagings with a maximum gross mass of 40 kg. For transportation by aircraft, such appliances must be transported as cargo.
50. In § 173.221, paragraph (a) is revised and paragraph (c) is added to read as follows:
(a) Non-bulk shipments of Polymeric beads (or granules), expandable
(c) For transportation by vessel, the provisions of § 176.907 must be met.
51. In § 173.225, the paragraph (c) “Organic Peroxide Table” and the paragraph (e) “Organic Peroxide IBC Table” are amended by adding the entries under “[ADD]” and revising entries under “[REVISE]” in the appropriate alphabetical sequence to read as follows:
(c) * * *
(e) * * *
52. In section 173.226:
a. In the paragraph (c)(1) list, the wording “Expanded plastic box: 4H2” is
b. In the paragraph (c)(1) list, the wording “Metal box other than steel or aluminum: 4N” is added after the entry “Solid plastic box: 4H2”.
53. In § 173.230, paragraphs (e)(2)(ii) and (f)(3) are revised to read as follows:
(e) * * *
(2) * * *
(ii) For fuel cell cartridges contained in equipment, the entire fuel cell system must be protected against short circuits and unintentional activation. The equipment must be securely cushioned in the outer packaging.
(f) * * *
(3) For transportation aboard passenger aircraft, for fuel cell cartridges contained in equipment, each fuel cell system and fuel cell cartridge must conform to IEC PAS 62282-6-100 Ed. 1 [and Amendment 1] (IBR, see § 171.7 of this subchapter) or a standard approved by the Associate Administrator;
54. In § 173.240, paragraph (f) is added to read as follows:
(f)
55. In § 173.306, paragraph (j) is revised to read as follows:
(j)
56. In § 173.313:
a. The section heading is revised;
b. The introductory text is revised;
c. The table name is revised;
d. In the table, the value listed for the maximum filling ratio for UN3220 of “0.95” is replaced with “0.87”; and
e. Entries are added for UN3500, UN3501, UN3502, UN3503, UN3504 and UN3505.
The revisions and additions read as follows:
The UN Portable Tank Table for Liquefied Compressed Gases and chemical under pressure is referenced in § 172.102(c)(7)(iii) of this subchapter for portable tanks that are used to transport liquefied compressed gases and chemicals under pressure. The table applies to each liquefied compressed gas and chemical under pressure that are identified with Special Provision T50 in Column (7) of the § 172.101 Hazardous Materials Table. In addition to providing the UN identification number and proper shipping name, the table provides maximum allowable working pressures, bottom opening requirements, pressure relief device requirements, and degree of filling requirements for liquefied compressed gas and chemical under pressure permitted for transportation in a T50 portable tank. In the minimum test pressure column, “small” means a portable tank with a diameter of 1.5 meters or less when measured at the widest part of the shell, “sunshield” means a portable tank with a shield covering at least the upper third of the shell, “bare” means no sunshield or insulation is provided, and “insulated” means a complete cladding of sufficient thickness of insulating material necessary to provide a minimum conductance of not more than 0.67 w/m
57. In § 173.316, paragraph (a)(8) is redesignated as paragraph (a)(9) and paragraph (a)(8) is added to read as follows
(a) * * *
(8) All pressure relief device inlets must under maximum filling conditions be situated in the vapor space of the closed cryogenic receptacle and the devices must be arranged to ensure that the escaping vapor is discharged unobstructed.
58. In § 173.318, paragraph (b)(7)(vi) is added to read as follows.
(b) * * *
(7) * * *
(vi) All pressure relief device inlets must under maximum filling conditions be situated in the vapor space of the closed cryogenic receptacle and the devices must be arranged to ensure that the escaping vapor is discharged unobstructed.
59. Section 173.335 is added to read as follows:
(a)
(b)
(c)
(d)
60. In § 173.340, paragraphs (c)(1), (c)(2), and (d) are revised to read as follows:
(c) * * *
(1) In UN 4A, 4B, or 4N metal boxes or UN 4C1, 4C2, 4D, or 4F metal-strapped wooden boxes. Functioning elements not assembled in grenades or devices must be in a separate compartment of these boxes, or in inner or separate outer boxes, UN 4C1, 4C2, 4D, or 4F, and must be packed and cushioned so that they may not come in contact with each other or with the walls of the box during transportation. Not more than 50 tear gas devices and 50 functioning elements must be packed in one box, and the gross weight of the outer box may not exceed 35 kg (77 pounds).
(2) In UN 1A2, 1B2, 1N2 or 1H2 drums. Functioning elements must be packed in a separate inner packaging or compartment. Not more than 24 tear gas devices and 24 functioning elements must be packed in one outer drum, and the gross weight of the drum may not exceed 35 kg (77 pounds).
(d) Tear gas devices may be shipped completely assembled when offered by or consigned to the U.S. Department of Defense, provided the functioning elements are packed so that they cannot accidentally function. Outer packagings must be UN 4A, 4B, or 4N metal boxes or UN 4C1, 4C2, 4D, or 4F metal-strapped wooden boxes.
61. The authority citation for part 175 continues to read as follows:
49 U.S.C. 5101-5128; 44701; 49 CFR 1.45 and 1.53.
62. In § 175.8, paragraphs (a)(3)(ii) and (b)(3) are revised to read as follows:
(a) * * *
(3) * * *
(ii) Irrespective of quantity limitations such as those provided in § 172.101 or § 175.75(c) of this subchapter, aircraft batteries may be transported on passenger aircraft as follows:
(A) “Batteries, wet, filled with acid” or “Batteries, wet, filled with alkali,” up to 100 kg net mass per package; and
(B) Lithium ion batteries, in packages containing a single aircraft battery with a net mass not exceeding 35 kg.
(b) * * *
(3) Aerosols of Division 2.2 only (for dispensing of food products), alcoholic beverages, colognes, liquefied gas lighters, perfumes, and portable electronic devices containing lithium cells or batteries that meet the requirements of § 175.10(a)(18) carried aboard a passenger-carrying aircraft by the operator for use or sale on that specific aircraft. A liquefied gas lighter design must be examined and successfully tested by a person or agency authorized by the Associate Administrator.
63. In § 175.10, paragraphs (a)(14), (a)(15), (a)(18), (a)(18)(iii) (a)(19)(vii), and (a)(19)(viii) are revised and paragraphs (a)(20), (a)(21), (a)(22), (a)(23), and (a)(24) are added to read as follows:
(a) * * *
(14) Electrically powered heat-producing articles (e.g., battery-operated equipment such as diving lamps and
(15) A wheelchair or other battery-powered mobility aid equipped with a nonspillable battery or a dry sealed battery when carried as checked baggage, provided—
(i) The battery conforms to the requirements of § 173.159a(d) of this subchapter for non-spillable batteries;
(ii) The battery conforms to the requirements of § 172.102(c)(1), Special provision 130 of this subchapter for dry sealed batteries, as applicable;
(iii) Visual inspection including removal of the battery, where necessary, reveals no obvious defects (removal of the battery from the housing should be performed by qualified airline personnel only);
(iv) The battery is disconnected and the battery terminals are protected to prevent short circuits, unless the wheelchair or mobility aid design provides an effective means of preventing unintentional activation, and
(v) The battery is—
(A) Securely attached to the wheelchair or mobility aid;
(B) Is removed and placed in a strong, rigid packaging marked “NONSPILLABLE BATTERY” (unless fully enclosed in a rigid housing that is properly marked);
(C) Is removed and placed in a strong, rigid packaging marked with the words “not restricted” in accordance with paragraph (c)(2) of § 172.102(c)(1), Special provision 130, of this subchapter; or
(D) Is handled in accordance with paragraph (a)(16)(iv) of this section.
(18) Except as provided in § 173.21 of this subchapter, portable electronic devices (for example, watches, calculating machines, cameras, cellular phones, lap-top and notebook computers, camcorders, etc.) containing cells or batteries (including lithium cells or batteries) and spare batteries and cells for these devices, when carried by passengers or crew members for personal use. Each spare battery must be individually protected so as to prevent short circuits (by placement in original retail packaging or by otherwise insulating terminals, e.g., by taping over exposed terminals or placing each battery in a separate plastic bag or protective pouch) and carried in carry-on baggage only. In addition, each installed or spare battery must comply with the following:
(iii) For a non-spillable battery, the battery and equipment must conform to § 173.159(d). Each battery must not exceed a voltage greater than 12 volts and a watt-hour rating of not more than 100 Wh. No more than two individually protected spare batteries may be carried. Such equipment and spare batteries must be carried in checked or carry-on baggage.
(19) * * *
(vii) Each fuel cell and fuel cell cartridge must conform to IEC/PAS 62282-6-100 [and Amendment 1] (IBR; see § 171.7 of this subchapter) and must be marked with a manufacturer's certification that it conforms to the specification. In addition, each fuel cell cartridge must be marked with the maximum quantity and type of fuel in the cartridge;
(viii) Interaction between fuel cells and integrated batteries in a device must conform to IEC/PAS 62282-6-100 [and Amendment 1] (IBR, see § 171.7 of this subchapter). Fuel cells whose sole function is to charge a battery in the device are not permitted; and
(20) Permeation devices for calibrating air quality monitoring equipment when carried in checked baggage provided the devices are constructed and packaged in accordance with § 173.175.
(21) An internal combustion or fuel cell engine or a machine or apparatus containing an internal combustion or fuel cell engine when carried as checked baggage, provided—
(1) The engine contains no liquid or gaseous fuel. An engine may be considered as not containing fuel when the engine components and any fuel lines have been completed drained, sufficiently cleaned of residue, and purged of vapors to remove any potential hazard and the engine when held in any orientation will not release any liquid fuel;
(2) The fuel tank contains no liquid or gaseous fuel. A fuel tank may be considered as not containing fuel when the fuel tank and the fuel lines have been completed drained, sufficiently cleaned of residue, and purged of vapors to remove any potential hazard;
(3) It is not equipped with a wet battery (including a non-spillable battery), a sodium battery or a lithium battery; and
(4) It contains no other hazardous materials subject to the requirements of this subchapter.
(22) Non-infectious specimens transported in accordance with § 173.4b(b).
(23) Insulated packagings containing refrigerated liquid nitrogen when carried in checked or carry-on baggage in accordance with the ICAO Technical Instructions (IBR, see § 171.7 of this subchapter), Packing Instruction 202, the packaging specifications in part 6, chapter 5, and special provision A152.
(24) Small cartridges fitted into devices with no more than four small cylinders of carbon dioxide or other suitable gas in Division 2.2. The water capacity of each cylinder must not exceed 50 ml (equivalent to a 2.8 g carbon dioxide cartridge), with the approval of the operator.
64. The authority citation for part 176 continues to read as follows:
49 U.S.C. 5101-5128; 49 CFR § 1.53.
65. In § 176.2, the following definition for “
66. In § 176.63, paragraphs (b) and (e) are revised to read as follows:
(b) To qualify as “on deck” stowage, the location must be on the weather deck. If the location is in a house on the weather deck, the location must have a permanent structural opening to the atmosphere, such as a door, hatch, companionway or manhole, and must be vented to the atmosphere. The location may not have any structural opening to any living quarters, cargo, or other compartment unless the opening has means for being closed off and secured. Any deck house containing living quarters, a steering engine, a refrigerating unit, a refrigerated stowage box, or a heating unit may not be used unless that area is isolated from the cargo stowage area by a permanent, and tight, metallic bulkhead. Stowage in a shelter or 'tween deck is not considered to be “on deck”. A barge that is vented to the atmosphere and is stowed on deck on a barge-carrying ship is considered to be “on deck”. When an entry in § 172.101 of this subchapter requires “on-deck” stowage and is qualified by the requirement “protected from sources of heat”, the stowage must be protected from the direct rays of the sun by means of structural erections or awnings except that such protection is not required for shipment in portable tanks.
(e) Notwithstanding the stowage provisions given in the table in § 172.101 of this subchapter, empty packages containing residue, including IBCs and large packages, may be stowed “on deck” or “under deck” in a mechanically ventilated cargo space. However, empty pressure receptacles containing residue that carry a label of class 2.3 must be stowed “on deck” and waste aerosols must be stowed in accordance with the table in § 172.101 of this subchapter.
67. In § 176.76, paragraph (a)(9) is revised to read as follows:
(a) * * *
(9) When packages are secured with banding or straps, these restraints must not be over-tightened to cause damage or deformation of the packages or the securing points (such as D-rings) within the freight container or transport vehicle;
68. In § 176.83 paragraphs (m)(2) and (m)(3) are revised to read as follows:
(m) * * *
(2) Not all hazardous materials falling within a segregation group are listed by name in the regulations. These materials are shipped under “n.o.s.” entries. Although these “n.o.s.” entries are not listed themselves in the above groups, the person who offers a hazardous material for transportation must decide whether allocation under a segregation group is appropriate.
(3) The segregation groups described above do not address materials that fall outside the classification criteria of the hazardous materials regulations, although it is recognized that some non-hazardous materials have certain chemical properties similar to hazardous materials listed in the segregation groups. A person who offers a hazardous material for transportation or the person responsible for packing the materials into a cargo transport unit who does have knowledge of the chemical properties of such non-hazardous materials may identify a relevant segregation group and apply the segregation requirements for that segregation group.
69. In § 176.84, in the table of provisions in paragraph (b), Stowage provisions 19, 48, and 50 are deleted and Stowage provisions 25 and 128 are revised and, in paragraph (c)(2), stowage provisions 7E, 8E and 20E are deleted, and Stowage provision 26E is revised to read as follows:
(b) Table of provisions:
(c) * * *
70. In § 176.116, paragraph(a) is revised and paragraph (f) is removed and reserved to read as follows:
(a)
(1) Class 1 (explosive) materials must be stowed in a cool part of the ship and must be kept as cool as practicable while on board. Class 1 (explosives) must be stowed as far away as practicable from any potential source of heat or ignition.
(2) Class 1 (explosive) materials may not be positioned closer to the ship's side than a distance equal to one eighth of the beam or 2.4 m (8 feet), whichever is less.
(3) Except where the consignment of Class 1 (explosive) materials consists only of explosive articles, the wearing of shoes or boots with unprotected metal nails, heels, or tips of any kind is prohibited.
(f) [Reserved]
71. Remove and reserve § 176.128.
72. Remove and reserve § 176.130.
73. Remove and reserve § 176.133.
74. Remove and reserve § 176.134.
75. Remove and reserve § 176.136.
76. In § 176.138, paragraph (b) is revised to read as follows:
(b) Class 1 (explosives) may not be stowed within a horizontal distance of 6 m (20 feet) from any potential source of heat or ignition. With the exception of division 1.4 (explosive) materials, class 1 (explosives) may not be stowed within a horizontal distance of 12 m (39 feet) from the bridge, accommodation areas, and lifesaving appliances.
77. In § 176.144, paragraph (d) is revised to read as follows:
(d) If some of the Class 1 (explosive) materials in a stowage mixture require non-metallic lining of the closed cargo transport unit, Class 1 (explosive) materials requiring ordinary stowage may be stowed in the same closed cargo transport. When a closed cargo transport unit is used for such substances that require non-metallic lining of the closed cargo transport unit, the other Class 1 (explosive) materials stowed therein must have no exposed parts of any ferrous metal or aluminum alloy, unless separated by a partition.
78. In § 176.146, paragraphs (a) and (b) are revised, and paragraph (c) is removed and reserved, to reads as follows:
(a) Except as required by paragraph (b) of this section, Class 1 (explosive) materials need not be segregated from other cargo of a non-dangerous nature.
(b) Readily combustible materials may not be stowed in the same compartment or hold as Class 1 (explosive) materials other than those in compatibility group S.
(c) [Reserved]
79. In § 176.170, paragraph (c) is reserved and paragraph (a) is revised to read as follows:
(a) When Class 1 (explosive) materials are stowed in a freight container, the freight container, for the purposes of this subpart, may be regarded as a closed transport unit for class 1 or a magazine but not a separate compartment.
(c) [Reserved]
80. In § 176.200, paragraph (c) is revised to read as follows:
(c) When cylinders of Class 2 (compressed gas) materials being transported by vessel are stowed in a vertical position they must be stowed in a block and cribbed or boxed-in with suitable sound lumber and the box or crib dunnaged to provide clearance from a steel deck at least 10 cm (3.9 inches) off any metal deck. Pressure receptacles in the box or crib must be braced to prevent any shifting of the pressure receptacles. The box or crib (gas rack) must be securely chocked and lashed to prevent movement in any direction.
81. Section 176.210 is revised to read as follows:
Cylinders of Class 2 (compressed gas) materials being transported by vessel must be protected from sources of heat. A tarpaulin covering the cylinders is not acceptable if it comes in contact with them.
82. Section 176.230 is revised to read as follows:
Division 2.1 (flammable gas) materials transported in Specification 106A or 110A multi-unit car tanks must be stowed on deck only, and shall be protected from sources of heat.
83. In § 176.305, paragraph (a) is revised to read as follows:
(a) A Class 3 (flammable) or combustible liquid must be kept as cool as reasonably practicable, protected from sources of heat, and away from potential sources of ignition.
84. In § 176.400, paragraphs (a) and (b) are revised to read as follows:
(a) Class 4 (flammable solid) material and Division 5.2 (organic peroxide) material must be kept as cool as reasonably practicable, protected from sources of heat, and away from potential sources of ignition.
(b) Division 5.2 (organic peroxide) material must be stowed away from living quarters or access to them. Division 5.2 (organic peroxide) material not requiring temperature control must be protected from sources of heat, including radiant heat and strong sunlight, and must be stowed in a cool, well-ventilated area.
85. In § 176.600, paragraph (d) is revised to read as follows:
(d) Each package of Division 2.3 (poisonous gas) material or Division 6.1 (poison) material that also bears a FLAMMABLE LIQUID or FLAMMABLE GAS label must be stowed in a mechanically ventilated space, kept as cool as reasonably practicable, and be protected from sources of heat and stowed away from potential sources of ignition.
86. The heading for Subpart O is revised to read as follows:
87. Section 176.907 is added to read as follows:
(a) When transported in cargo transport units, the cargo transport units must provide an adequate exchange of air in the unit. This adequate exchange of air may be accomplished by utilizing a ventilated container, an open-top container, or a container in one door off operation. When cargo transport units with venting devices are used these devices should be kept clear and operable. If mechanical devices are used for ventilation, they must be explosion-proof.
(b) As an alternative to the options presented in paragraph (a) of this section to ensure an adequate exchange of air; a refrigerated cargo transport unit may be used.
(c) The requirements in paragraph (a) and (b) do not apply if the hazardous material is:
(1) Packed in hermetically sealed packagings;
(2) Packed in IBCs which conform to packing group II performance level for liquid dangerous goods ; or
(3) Packages or IBCs with a total pressure in the packaging (i.e., the vapor pressure of the material plus the partial pressure of air or other inert gases, less 100kPa (15 psia)) at 55 °C (131 °F), determined on the basis of the hazardous material not completely filling the receptacle at a temperature of
(d) Cargo transport units must be marked with a warning mark including the words “CAUTION—MAY CONTAIN FLAMMABLE VAPOR” or “CAUTION—MAY CONTAIN FLAMMABLE VAPOUR” with lettering having a height of at least 25 mm (1 inch). The mark must be affixed to each access point in a location where it will be easily seen by persons prior to opening or entering the cargo transport unit and shall remain on the cargo transport unit until the following provisions are met:
(1) The cargo transport unit has been completely ventilated to remove any hazardous concentrations of vapor or gas;
(2) The immediate vicinity of the cargo transport unit is clear of any source of ignition; and
(3) The hazardous materials have been unloaded.
88. The authority citation for part 178 continues to read as follows:
49 U.S.C. 5101-5128; 49 CFR 1.53.
89. In § 178.274:
(a) In paragraph (f)(1)(v), the second sentence is revised.
(b) Paragraph (f)(1)(vi) is redesignated as paragraph (f)(1)(vii).
(c) Paragraph (f)(1)(vi) is added.
(d) Paragraph (i) is revised.
The addition and revisions read as follows:
(f) Pressure relief devices.—
(1) * * *
(v) * * * For spring loaded pressure relief devices, the rated flow capacity shall be determined according to ISO 4126-1 and ISO 4126-7 (IBR, see § 171.7 of this subchapter);
(vi) The cross sectional flow areas of the spring loaded pressure relief devices, frangible discs, and fusible elements in mm
(i) ISO 13340.
90. In § 178.512, the section heading and paragraphs (a) and (b) are revised to read as follows:
(a) The following are identification codes for steel, aluminum or other metal boxes:
(1) 4A for a steel box;
(2) 4B for an aluminum box; and:
(3) 4N for an other metal box.
(b) Construction requirements for steel, aluminum or other metal boxes are as follows:
91. In § 178.603, the table in paragraph (a) and paragraph (b) are revised to read as follows:
(a) * * *
(b) Exceptions. For testing of single or composite packagings constructed of stainless steel, nickel, or monel at periodic intervals only (i.e., other than design qualification testing), the drop test may be conducted with two samples, one sample each for the two drop orientations. These samples may have been previously used for the hydrostatic pressure or stacking test. Exceptions for the number of steel, aluminum and other metal packaging samples used for conducting the drop test are subject to the approval of the Associate Administrator.
92. In § 178.705, paragraph (a)(3) is revised to read as follows:
(a) * * *
(3) 31A, 31B, 31N for liquids.
93. In § 178.910, paragraphs (a)(1) and (b) are revised to read as follows:
(a) * * *
(1) Mark every Large Packaging in a durable and clearly visible manner. The marking may be applied in a single line or in multiple lines provided the correct sequence is followed with the information required by this section, in letters, numerals, and symbols of at least 12 mm in height. This minimum marking size requirement applies only to large packages manufactured after January 1, 2014. The following information is required in the sequence presented:
(b) All Large Packages manufactured, repaired or remanufactured after January 1, 2015 must be marked with the symbol applicable to a Large Package designed for stacking or not designed for stacking, as appropriate. The symbol must be not less than 100 mm by 100 mm as follows:
94. In § 178.980, paragraph (e)(2) is redesignated as paragraph (e)(3), paragraph (e)(3) is redesignated as paragraph (e)(4), and a new paragraph (e)(2) is added to read as follows:
(e) * * *
(2) For fiberboard or wooden Large Packagings, there may be no loss of contents and no permanent deformation that renders the whole Large Packaging, including the base pallet, unsafe for transportation.
95. Subpart R is added to part 178 to read as follows:
(a) This subpart prescribes requirements for Flexible Bulk Containers (FBCs) intended for the transportation of hazardous materials. FBC standards in this subpart are based on the UN Model Regulations (IBR; see § 171.7 of this subchapter).
(b) Terms used in this subpart are defined in § 171.8 of this subchapter.
The Flexible Bulk Container code designation is BK3.
(a) The manufacturer must:
(1) Mark every Flexible Bulk Container in a durable and clearly visible manner. The marking may be applied in a single line or in multiple lines provided the correct sequence is followed with the information required by this section. The following information is required in the sequence presented:
(i) Except as provided in § 178.503(e)(1)(ii), the United Nations packaging symbol as illustrated in § 178.503(e)(1)(i).
(ii) The code number designating the Flexible Bulk Container design type according to § 178.1005. The letter “W” must follow the Flexible Bulk Container design type identification code on a Flexible Bulk Container when the Flexible Bulk Container differs from the requirements in subpart R of this part, or is tested using methods other than those specified in this subpart, and is approved by the Associate Administrator in accordance with § 178.1035;
(iii) The capital letter Z identifying that the Flexible Bulk Container meets Packing Group III performance standard under which the design type has been successfully tested.
(iv) The month (designated numerically) and year (last two digits) of manufacture;
(v) The country authorizing the allocation of the mark. The letters “USA” indicate that the Flexible Bulk Container is manufactured and marked in the United States in compliance with the provisions of this subchapter.
(vi) The name and address or symbol of the manufacturer or the approval agency certifying compliance with subpart R and subpart S of this part. Symbols, if used, must be registered with the Associate Administrator.
(vii) The stacking test load in kilograms (kg). For Flexible Bulk Containers not designed for stacking the figure “0” must be shown.
(viii) The maximum permissible gross mass in kg.
(2) The following is an example of symbols and required markings for a Flexible Bulk container suitable for stacking; stacking load: 1,000 kg; maximum gross mass: 2,500 kg.
(a) Each Flexible Bulk Container must be sift-proof and completely closed during transport to prevent the release of contents and waterproof.
(b) Parts of the Flexible Bulk Container that are in direct contact with hazardous materials:
(1) Must not be affected or significantly weakened by those hazardous materials
(2) Must not cause a dangerous effect with the dangerous goods (e.g., catalyzing a reaction or reacting with the hazardous materials).
(3) Must not allow permeation of the hazardous materials that could
(c) Filling and discharge devices must be so constructed as to be protected against damage during transport and handling. The filling and discharge devices must be capable of being secured against unintended opening.
(d) Slings of the Flexible Bulk Container, if fitted with such, must withstand pressure and dynamic forces which can be expected under conditions normally incident to transportation.
(e) Handling devices must be strong enough to withstand repeated use.
(f) A venting device must be fitted to Flexible Bulk Containers intended to transport hazardous materials that may develop dangerous accumulation of gases within the Flexible Bulk Container. Any venting device must be designed so that external foreign substances are prevented from entering the Flexible Bulk Container through the venting device under conditions normally incident to transportation.
The use of Flexible Bulk Containers for the transport of hazardous materials is permitted for a period of time not to exceed two years from the date of manufacture of the Flexible Bulk Container.
96. Subpart S is added to part 178 to read as follows:
This subpart prescribes certain testing requirements for Flexible Bulk Containers identified in subpart R of this part.
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(5)
(i) A packaging that differs in surface treatment;
(ii) A packaging that differs only in its lesser external dimensions (
(d)
(e)
(2) Changes in the frequency of design requalification testing specified in paragraph (e)(1) of this section are authorized if approved by the Associate Administrator.
(f)
(g)
(1) Conduct performance tests or have tests conducted by an independent testing facility, in accordance with this subpart; or
(2) Make a sample Flexible Bulk Container available to the Associate Administrator, or a designated representative, for testing in accordance with this subpart.
(h)
(1) Name and address of test facility;
(2) Name and address of applicant (where appropriate);
(3) A unique test report identification;
(4) Date of the test report;
(5) Manufacturer of the packaging;
(6) Description of the flexible bulk container design type (e.g., dimensions materials, closures, thickness, etc.), including methods of manufacture (e.g., blow molding) and which may include drawing(s) and/or photograph(s);
(7) Maximum capacity;
(8) Characteristics of test contents (e.g.
(9) Mathematical calculations performed to conduct and document testing (e.g., drop height, test capacity, outage requirements, etc.);
(10) Test descriptions and results; and
(11) Signature with the name and title of signatory.
(a) Except as otherwise provided in this subchapter, each Flexible Bulk Container must be closed in preparation for testing and tests must be carried out in the same manner as if prepared for transportation. All closures must be installed using proper techniques and torques.
(b) If the material to be transported is replaced for test purposes by a non-hazardous material, the physical properties (grain, size, viscosity) of the replacement material used that might influence the results of the required tests must correspond as closely as possible to those of the hazardous material to be transported. It is permissible to use additives, such as bags of lead shot, to achieve the requisite total package mass, so long as they do not affect the test results.
(a)
(b)
(c)
(2) Following the drop, the Flexible Bulk Container must be restored to the upright position for observation.
(d)
(2) Drop tests are to be performed with the solid to be transported or with a non-hazardous material having essentially the same physical characteristics.
(e)
(a)
(b)
(c)
(2) If not tested as indicated in paragraph (c)(1) of this section, a Flexible Bulk Container design type must be tested as follows:
(i) Fill the Flexible Bulk Container to 95% full with a material representative of the product to be shipped.
(ii) Suspend the Flexible Bulk Container by its lifting devices.
(iii) Apply a constant downward force through a specially designed platen. The platen will be a minimum of 60 percent and a maximum of 80 percent of the cross sectional surface area of the Flexible Bulk Container.
(iv) The combination of the mass of the filled Flexible Bulk Container and the force applied through the platen must be a minimum of six times the maximum net mass of the Flexible Bulk Container. The test must be conducted for a period of five minutes.
(v) Other equally effective methods of top lift testing and preparation may be used with approval of the Associate Administrator.
(d)
(a)
(b)
(c)
(2) For all Flexible Bulk Containers, the load must be applied by one of the following methods:
(i) Four Flexible Bulk Containers of the same type loaded to their maximum permissible gross mass and stacked on the test Flexible Bulk Container;
(ii) The calculated superimposed test load weight loaded on either a flat plate or a reproduction of the base of the Flexible Bulk Container, which is stacked on the test Flexible Bulk Container.
(d)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(i) Completely penetrate all layers of the Flexible Bulk Container on a wall with a wide face.
(ii) Be made at a 45° angle to the principal axis of the Flexible Bulk Container, halfway between the bottom surface and the top level of the contents.
(2) The Flexible Bulk Container after being cut according to the provisions of § 178.1070(c)(1), must be subjected to a uniformly distributed superimposed load equivalent to twice the maximum gross mass of the package. This load must be applied for at least fifteen minutes. Flexible Bulk Containers that are designed to be lifted from the top or the side must, after removal of the superimposed load, be lifted clear of the floor and maintained in that position for a period of fifteen minutes
(d)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an Incidental Take Authorization (ITA).
In accordance with the Marine Mammal Protection Act (MMPA) regulation, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the U.S. Army Corps of Engineers (ACOE) take small numbers of marine mammals, by Level B harassment, incidental to confined blasting operations in the Port of Miami in Miami, Florida.
Effective March 15, 2013 through March 14, 2014.
A copy of the IHA and the application are available by writing to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 or by telephoning the contacts listed here.
An electronic copy of the IHA application containing a list of the references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see
This project was previously evaluated by the ACOE under an Environmental Impact Statement (EIS) and a Record of Decision (ROD) for the project was signed on May 22, 2006, which is also available at the same internet address. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-427-8401.
Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 (a)(5)(D)) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.
Authorization for the incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small number of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On May 17, 2011, NMFS received a letter from the ACOE, requesting an IHA. The requested IHA would authorize the take, by Level B (behavioral) harassment, of small numbers of Atlantic bottlenose dolphins (
(1) The widening of Cut 1 and deepening of Cut 1 and Cut 2;
(2) Adding a turn widener and deepening at the southern intersection of Cut 3 within Fisherman's Channel;
(3) Widening and deepening the Fisher Island Turning Basin; and
(4) Expanding the Federal Channel and Port of Miami berthing areas in Fisherman's Channel and the Lummus Island Turning Basin.
The construction will likely be completed using a combination of mechanical dredge (
The confined blasting is planned to take place beginning during the fall/winter of 2012 (November, 2012), and is expected to take up to 24 months in Miami, Florida. Additional information on the construction project is contained in the application, which is available upon request (see
The ACOE plans to deepen and widen the Federal channels at Miami Harbor, Port of Miami, in Miami-Dade County, Florida. The recommended plan (Alternative 2 of the Environmental Impact Statement [EIS]) includes four components:
(1) Widen the seaward portion of Cut 1 from 500 to 800 feet (ft) (152.4 to 243.8 meters [m]) and deepen Cut 1 and Cut 2 from a project depth of −44 to −52 ft (13.4 to 15.9 m);
(2) Add a turn widener at the southern intersection of Cut 3 within Fisherman's Channel and deepen to a project depth of −50 ft (−15.2 m);
(3) Increase the Fisher Island Turning Basin from 1,200 to 1,500 ft (365.8 to 457.2 m), truncate the northeast section of the turning basin to minimize seagrass impacts, and deepen from −42 ft (−12.8 m) to a project depth of −50 ft; and
(4) Expand the Federal Channel and Port of Miami berthing areas in Fisherman's Channel and in the eastern end of the Lummus Island Turning Basin (LITB) by 60 ft (18.3 m) to the south for a total of a 160 ft (48.8 m) wide berthing area and will be deepened from −42 ft to a project depth of −50 ft. The Federal Channel will be widened 40 ft (12.2 m) to the south, for a 100 ft (30.5 m) total width increase in Fisherman's Channel. This component (referred to as Component 5 in the ACOE's IHA application) will deepen Fisherman's Channel and the LITB from −42 ft to a project depth of −50 ft. See Figure 1 of ACOE's IHA application for a map of the project's components.
Disposal of the estimated five million cubic yards of dredged material would occur at up to three disposal sites (seagrass mitigation area, offshore artificial reef mitigation areas, and the Miami Offshore Dredged Material Disposal Site). This project was previously evaluated under an Environmental Impact Statement (EIS) titled “Miami Harbor Miami-Dade County, Florida Navigation Study, Final General Reevaluation Report and Environmental Impact Statement,” prepared under the National Environmental Policy Act, and a Record of Decision for the project was signed on May 22, 2006. The original proposed project included six components, two of which (components four and six) have been removed. The EIS provides a detailed explanation of project location as well as all aspects of project implementation. It is also available online for public review at:
To achieve the deepening of the Miami Harbor from the existing depth of −45 ft (−13.7 m) to project depth of −52 ft, pretreatment of some of the rock areas may be required using confined underwater blasting, where standard construction methods are unsuccessful due to the hardness of the rock. The ACOE has used two criteria to determine which areas are most likely to need confined blasting for the Miami Harbor expansion: (1) Areas documented by core borings to contain hard and/or massive rock; and (2) areas previously blasted in the harbor during the 2005 confined blasting and dredging project.
The duration of the confined blasting is dependent upon a number of factors including hardness of rock, how close the drill holes are placed, and the type of dredging equipment that will be used to remove the pretreated rock. Without this information, an exact estimate of how many confined “blast days” will be required for the project cannot be determined. The harbor deepening project at Miami Harbor in 2005 to 2006 estimated between 200 to 250 days of confined blasting with one shot per day (a blast day) to pre-treat the rock associated with that project; however, the contractor completed the project in 38 days with 40 confined blasts. A shot, or blast, is an explosion made up of a group of blast holes set in a pattern referred to as a blast array that are detonated all at once or in a staggered manner with delays between them. A blast hole is the hole drilled into the bottom substrate that will be filled with explosives, capped with stemming, and detonated.
The upcoming expansion at Miami Harbor scheduled to begin in fall/winter of 2012 currently estimates a maximum of 600 blast days for the entire multi-year project footprint. The ACOE estimates a maximum number of 313 blast days for the duration of this IHA (
At this time, the ACOE has not selected a contractor and thus does not have a contractor-developed confined blasting plan from the contractor specifically identifying the number of holes that will be drilled, the amount of explosives that will be used for each hole, the number of confined blasts per day (usually no more than two per a day) or the number of days the construction is anticipated to take to complete. The ACOE is required to have all authorizations and permits completed (including the possession of an IHA) prior to the request for proposal and advertising the contract, per the Competition in Contracting Act, and the Federal Acquisition Regulations. While the ACOE does not have contract bids at this time, it is possible to make reasonable estimates of the bounds based on previous similar projects that have been conducted by the ACOE here and at other locations. NMFS supports the use of the worst-case scenarios to estimate confined blasting activities and associated potential impacts.
Drill holes are small in diameter (typically 2 to 4 in [5.1 to 10.2 cm] in diameter) and only 5 to 10 ft (1.5 to 3.1
Although the ACOE does not have a specific contractor-provided confined blasting plan, the ACOE developed plans and specifications for the project that direct the contractor to do certain things in certain ways and are basing these plans and specifications on the previous deepening project in Miami Harbor (construction was conducted in 2005 to 2006).
The previous ACOE project in Miami Harbor required a maximum weight of explosives used in each delay of 376 pounds (lb) (170.6 kilograms [kg]) and the contractors blasted once or twice daily from June 25 to August 25, 2005, for a total of 40 individual blasts in 38 days of confined blasting. The 2005 project, which utilized confined blasting, was limited to Fisherman's Channel and the Dodge-Lummus Island Turning Basin (see Figure 2 of ACOE's IHA application, which shows the confined blasting footprint for the 2005 project), whereas the project described in the ACOE's application includes Fisherman's Channel, Dodge-Lummus Island Turning Basin, Fisher Island Turning Basin, and Inner and Outer Entrance Channel. This larger area will result in more confined blasting for this project than was completed in 2005, as it includes areas not previously blasted in 2005.
A copy of the
For the deepening at Miami Harbor, the ACOE has consulted with blasting industry experts and believes, based on the rock hardness and composition at Miami Harbor, a maximum charge weight per delay of 450 lbs (204.1 kg) should be expected. The minimum charge weight will be 10 lbs (4.5 kg). A delay is a period of time (in milliseconds) between small detonations that are part of the total charge weight of the entire detonation.
The focus of the confined blasting work at the Miami Harbor is to pre-treat the massive limestone formation that makes up the base of Miami Harbor prior to removal by a dredge utilizing confined blasting, meaning the explosive shots would be “confined” in the rock. Typically, each blast array is set up in a square or rectangle area divided into rows and columns (see Figures 3, 4, and 5 in the ACOE's IHA application). A typical blast array is 10 holes long by 4 holes wide with holes being spaced 40 ft (12.2 m) apart covering an area of 4,000 ft
In confined blasting, each charge is placed in a hole drilled in the rock approximately 5 to 10 ft (1.5 to 3.0 m) deep; depending on how much rock needs to be broken and the intended project depth. The hole is then capped with an inert material, such as crushed rock. This process is referred to as “stemming the hole” (see Figure 6 and 7 of ACOE's IHA application; each bag as shown contains approximate volume of material used per discharge). The ACOE used this technique previously at the Miami Harbor Phase II project in 2005. NMFS issued an IHA for that operation on May 22, 2003 (68 FR 32016, May 29, 2003) and renewed the IHA on April 19, 2005 (70 FR 21174, April 25, 2005).
For the Port of Miami expansion project (Miami Harbor Phase II) that used confined blasting as a pre-treatment technique, the stemming material was angular crushed rock. (Stemming is the process of filling each borehole with crushed rock after the explosive charge has been placed. After the blasting charge has been set, then the chain of explosives within the rock is detonated. A chain of explosives refers to all of the detonations within the blast array, without regard to how many holes are in the array. They will detonate within milliseconds of each other. Stemming reduces the strength of the outward pressure wave produced by blasts.) The optimum size of stemming material is material that has an average diameter of approximately 0.05 times the diameter of the blast-hole. The selected material must be angular to perform properly (Konya, 2003). For the ACOE's project, specifications will be prepared by the geotechnical branch of the Jacksonville District.
The specifications for any construction utilizing the confined blasting for the deepening of Miami Harbor will have similar stemming requirements as those that were used for the Miami Harbor Phase II project in 2005 to 2006. The length of stemming material would vary based on the length of the hole drilled, however a minimum of two 2-ft (0.6 m) walls will be included in the project specific specifications. Studies have shown that stemmed blasts have up to a 60 to 90 percent decrease in the strength of the pressure wave released, compared to open water blasts of the same charge weight (Nedwell and Thandavamoorthy, 1992; Hempen
In confined blasting, the detonation is conveyed from the drill barge to the primer and the charge itself by Primacord and Detaline. These are used to safely fire the blast from a distance to ensure human safety from the blast. The Primacord and Detaline used on this project have a specific grain weight, and they burn like a fuse. They are not electronic. The time delay from activation to detonation of the charge is less than one second.
To estimate the maximum poundage of explosives that may be utilized for this project, the ACOE has reviewed previous confined blasting projects, including San Juan Harbor, Puerto Rico in 2000, and Miami Harbor, Florida in 2005. Additional data was also reviewed from the New York Harbor deepening project (ACOE, 2004 and Keevin
Based upon industry standards and ACOE Safety & Health Regulations, the confined blasting program will follow these operating guidelines:
• The weight of explosives to be used in each confined blast will be limited to the lowest poundage of explosives that can adequately break the rock.
• Drill patterns (
• Hours of confined blasting are restricted from two hours after sunrise to one hour before sunset to allow for adequate observation of the project area for marine mammals.
• Selection of explosive products and their practical application method must address vibration and air blast (overpressure) control for protection of existing structures and marine wildlife.
• Loaded blast holes will be individually delayed to reduce the maximum lbs per delay at point detonation, which in turn will reduce the mortality radius.
• The blast design will consider matching the energy in the “work effort” of the borehole to the rock mass or target for minimizing excess energy vented into the water column or hydraulic shock.
• Delay timing adjustments with a minimum of 8 milliseconds (ms) between delay detonations to stagger the blast pressures and prevent cumulative addition of pressures in the water.
Prior to implementing a construction blasting program, a test blast program will be completed. The test blast program will have all the same protective monitoring and mitigation measures in place for protected species as blasting operations for construction purposes. The purpose of the test blast program is to demonstrate and/or confirm the following:
• Drill boat capabilities and production rates;
• Ideal drill pattern for typical boreholes;
• Acceptable rock breakage for excavation;
• Tolerable vibration level emitted;
• Directional vibration; and
• Calibration of the environment.
The test blast program begins with a single range of individually delayed holes and progresses up to the maximum production blast intended for use. The test blast program will take place in the project area and will count toward the pre-treatment of material, since the blasts of the test blast program will be cracking rock. Each test blast is designed to establish limits of vibration and air blast overpressure, with acceptable rock breakage for excavation. The final test event simulates the maximum explosive detonation as to size, overlying water depth, charge configuration, charge separation, initiation methods, and loading conditions anticipated for the typical production blast.
The results of the test blast program will be formatted in a regression analysis with other pertinent information and conclusions reached. This will be the basis for developing a completely engineered procedure for the construction blasting plan.
During the test blast program, the following data will be used to develop a regression analysis:
• Distance;
• Pounds per delay;
• Peak particles velocities (Threshold Limit Value [TVL]);
• Frequencies (TVL);
• Peak vector sum; and
• Air blast, overpressure.
As part of the development of the protected species monitoring and mitigation protocols, which will be incorporated into the plans and specification for the project, ACOE will continue to coordinate with the resource agencies and non-governmental organizations (NGOs) to address concerns and potential impacts associated with the use of blasting as a construction technique.
Additional details regarding the confined blasting and dredging project can be found in the ACOE's IHA application and EIS. The EIS can also be found online at:
At this time the ACOE has not yet awarded a contract or given a Notice to Proceed (NTP) with a specific date for the initiation of construction activities within the Port of Miami. However, the ACOE requested that the first IHA be issued by the end of July, 2012, with an effective date of March 15, 2013, to allow for the advertisement of the contract for construction in September, 2012; award the contract and provide the NTP to the selected in February, 2012 to the selected contractor, resulting in construction work beginning in March 15, 2013. After receiving NTP, the contractor will have 45 days to begin dredging activities, but blasting activities shall not begin until after March 15, 2013. The construction activities are expected to take up to 26 months and at this time, it is possible that confined blasting could take place at any time during construction. The ACOE also notes that multiple IHAs (up to three) will be needed and requested for this project due to the project duration.
The confined blasting activities will be limited to waters shallower than 60 ft. (18.3 m) and located entirely on the continental shelf and will not take place seaward of the outer reef. The specified geographic area of the construction will be within the boundaries of the Port of Miami, in Miami, Florida (see Figure 11 of the ACOE's IHA application). The Port of Miami is an island facility consisting of 518 upland acres and is located in the northern portion of Biscayne Bay in South Florida. The City of Miami is located on the west side of the Biscayne Bay; the City of Miami Beach is located on an island on the northeast side of Biscayne Bay, opposite of Miami. Both cities are located in Miami-Dade County, Florida, and are connected by several causeways crossing the bay. The Port of Miami is the southernmost major port on the Atlantic Coast. The Port of Miami's landside facilities are located on Dodge-Lummus Island, which has a GPS location 25°46′05″ North 80°09′40″ West. See Figure 11 of the ACOE's IHA application for more information on the location of the project area in the Port of Miami.
A notice of preliminary determinations and proposed IHA for the ACOE confined blasting operations was published in the
50 CFR 216.107 states that IHAs will be valid for a period of time not to exceed one year but may be renewed for additional periods of time not to exceed one year for each reauthorization; therefore, the promulgation of regulations and the subsequent issuance of Letters of Authorization (LOAs) to the ACOE for the confined blasting operations in the Port of Miami is not necessary or required.
NMFS considered cumulative effects of the confined blasting on the resident and transient bottlenose dolphin populations (
Regarding the effectiveness of the stemming, Section 3.5.5 of the ACOE's project confined blasting specification (02 10 00) state:
All blast holes shall be stemmed. The Blaster or Blasting Specialist shall determine the thickness of stemming using blasting industry conventional stemming calculation. The minimum stemming shall be 2 ft (0.61 m) thick. Stemming shall be placed in the blast hole in a zone encompassed by competent rock. Measures shall be taken to prevent bridging of explosive materials and stemming within the hole. Stemming shall be clean, angular to subangular, hard stone chips without fines having an approximate diameter of
The specifications clearly direct the contractor to utilize and employ blasting industry standards and specifically requires the contractor to place the blast hole in a zone encompassed by competent rock to minimize the potential rifling (when a hole is not well confined). The ACOE's Master Blaster reviews all proposed contractor blasting plans to ensure compliance with the project specifications.
NMFS uses the best scientific evidence available in its environmental analysis and the development of monitoring and mitigation measures required in the IHA issued to the ACOE. In the IHA, NMFS requires the ACOE to implement mitigation measures (
The ACOE has previously noted in the project environmental coordination documents (project FEIS and Biological Assessments) and continues to recognize that the project area is adjacent to the Bill Sadowski Critical Wildlife Area. NMFS' IHA requires the ACOE to implement monitoring and mitigation measures so that the confined
The ACOE conducts dredging operations 24 hours a day throughout the U.S. and, to date, utilizes the same types of dredging equipment planned to be used for the blasting and dredging operations as part of the Miami Harbor Deeping Project. The ACOE's Jacksonville District Local Master Guide Specification (Section 01 57 20) covers the requirements for environmental protection during construction activities, which includes monitoring and mitigation measures for dredging operations. This document can be found online at:
Habitat loss associated with the project is limited primarily to an existing and maintained Federal channel that is 0.07% of the total area of Biscayne Bay, which is habitat area for the Biscayne Bay stock of bottlenose dolphins, and 0.0009% of the 20 m (65.6) isobar off the coast of Florida, which is habitat area for the Western North Atlantic Central Florida Coastal stock of bottlenose dolphin. The ACOE also conducted consultations with NMFS Southeast Regional Office (SERO) under the ESA and Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) regarding designated critical habitat of ESA-listed species and essential fish habitat (EFH).
The IHA issued to ACOE provides monitoring and mitigation requirements that will protect marine mammals from injury, serious injury, or mortality. The ACOE is required to comply with the IHA's requirements. Under the MMPA, IHAs must include means of effecting the least practicable impact on marine mammal species and their habitat (
The ACOE's specified activity only authorizes the use of confined blasting, which results in a 60 to 90 percent reduction in the strength of the pressure wave released (Hempen
NMFS has to consider other information, not just the stock assessment reports, to provide a complete picture of marine mammals in the action area. There are at least five openings from the Atlantic Ocean into Biscayne Bay where bottlenose dolphins from the Biscayne Bay stock can exit the Biscayne Bay system. From the north they are: Haulover Inlet, Government Cut, Norris Cut, Bear Cut, and the Safety Valve. Additionally the Atlantic Intracoastal Waterway allows animals from Biscayne Bay to transit north into the Indian River Lagoon Estuarine System (IRLES) and South into Florida Bay. Contillo
Additionally, the commenter incorrectly states the project will have 600 days of blasting. The ACOE estimates a maximum number of 313 blast days for the duration of this IHA (
NMFS also acknowledges that the Level B harassment definition also includes noise exposures below TTS that may result in behavioral modifications to resident animals. Without any scientific basis, the NMFS notice concludes that the behavioral modification criteria would not apply
The ACOE's IHA application and NMFS'
NMFS disagrees with the commenter that the proposed level of take analysis is faulty in the ACOE's IHA application and NMFS's notice of preliminary determinations and proposed IHA (76 FR 71517, November 18, 2011). The IHA issued to the ACOE for the confined blasting operations in the Port of Miami only authorizes the incidental take of bottlenose dolphins by Level B harassment; no incidental takes by Level A harassment (injury), serious injury, or mortality are anticipated or authorized.
Because for ACOE's confined blasting activities all of the holes in the delay will explode within a few seconds at most (the blast array will be timed with a minimum eight milliseconds delay between detonations to stagger the blast pressures and prevent cumulative addition of pressures in the water), and a maximum of only two confined blasting events will occur in a day separated by a minimum of four to six hours (worst case scenario). NMFS applies the explosive TTS threshold which then allows us to estimate the number of animals that may incur TTS and account for any associated behavioral disruption.
The multiple detonations threshold was designed for specified activities like gunnery exercises where tens, to hundreds, to thousands of individual explosions continue over minutes to hours that would clearly have the potential to cause behavioral harassment associated at levels lower than those that result in TTS. The Level B harassment (behavioral) threshold criteria of 177 dB re 1 μPa
Also, the exclusion zone is larger than the area where the ACOE has determined that Level B harassment will occur, so if the monitoring and mitigation measures are successful as expected, and no duration occurs when an animal is inside the exclusion zone, no take by Level B harassment is likely to occur.
The primary potential impact to the Atlantic bottlenose dolphins occurring in the Port of Miami action area from the detonations is Level B harassment (in the form of TTS and any associated behavioral disruption resulting) incidental to noise generated by confined explosives. In addition, NMFS believes that the monitoring and mitigation measures required by the IHA will further limit incidental take to Level B harassment and have the least practicable impact on marine mammal species or stocks in the action area.
It has not been studied or determined whether the current bottlenose dolphins that reside in the northern portion of Biscayne Bay would be stressed by their isolation from the remainder of their resident community or would alternatively abandon their habitat in the northern portion of Biscayne Bay where 30% of the identified individuals currently reside. There is not consideration of data or presentation of scientific analysis that established the 600 days of blasting would not disrupt the behavioral patterns of the community of dolphins which reside in both the northern and southern areas of Biscayne Bay. Given the known intelligence of the dolphins, and their sensitive hearing, it is necessary for the applicant to establish with data and analysis that the blasting would not disrupt the natural behavioral patterns of the community of bottlenose dolphins in Biscayne Bay. No such analysis was presented in the ACOE's IHA application or in the NMFS
The ACOE and NMFS admit that they are “unable to determine how the temporary modification of the action area by the proposed construction and blasting will impact the two stocks of
NMFS believes that the confined blasting is unlikely to result in behavioral modifications that may sever the Biscayne Bay stock of bottlenose dolphins between the northern and southern parts of Biscayne Bay. A review of data collected by NMFS SEFSC before, during, and after the 2005 confined blasting event shows no difference in home range usage of bottlenose dolphins from the Biscayne Bay stock. The ACOE and NMFS expect this same response for the future confined blasting associated with the Miami Harbor Deepening Project. The project area is a commercial port environment, and the bottlenose dolphins residing in or transiting through the vicinity of the Port of Miami are likely habituated to the presence of, and noise from, numerous vessel movements ranging from large commercial vessels to small recreational craft, as well as sea planes and helicopters operating from the vicinity of Rickenbacker Causeway and overflying the Bill Sadowski Critical Wildlife Area. This ongoing commercial and recreational use of the Port of Miami's channels far exceeds the potential impact of the confined blast events associated with the deepening project that have a duration of less than 60 seconds each (from the first fish scare to the end of the actual confined blast), and with no more than two confined blast events (separated by at least four hours) occurring in one calendar day. Blasting events take from the time beginning one hour before the detonation through 30 minutes after the detonation, including any delays due to protected species. This means that the maximum duration of noise and pressure associated with confined blasts will be 120 seconds in a calendar day, which is 0.14% of all of the time in a calendar day, assuming a worst case of two confined blast events in a calendar day that last up to 60 seconds each in duration, with confined blasts occurring no more than six days a week. The ACOE took the most conservative calculation for each blast to protect natural resources. Furthermore, bottlenose dolphins residing in Biscayne Bay can transit through the Port of Miami area from north to south in two locations inside Biscayne Bay—at the Intracoastal Waterway, on the west side of the Port of Miami, which is completely outside the project area (including the safety zone) and where Fisherman's Channel meets the main channel in Government Cut, Fisher Island Turning Basin. These two corridors allow animals wishing to avoid the project area a mechanism to transit north and south. The issue of the isolation of the Biscayne Bay stock of bottlenose dolphins has already been addressed in the response to Comment 6 and is hereby incorporated by reference.
NMFS and the ACOE disagree with the comment that the history of the ACOE's confined blasting operations at the Port of Miami indicates substantial impacts on bottlenose dolphins in the action area. Utilizing the correct number of confined blast days/events and the specification requirement that when bottlenose dolphins are observed in either the danger or exclusion zone (as demonstrated in Figure 10 of the ACOE's IHA application), confined blasting operations are delayed until the animals leave the area of their own volition. The assumptions in the commenter's analysis indicating that bottlenose dolphins observed in the
In contrast to the commenter's statement, the ACOE's 2005/2006 confined blasting and dredging project did not have any documented incidents of take by Level B harassment during the 40 confined blast days/events. One bottlenose dolphin was recorded as jumping after a confined blast detonation out of the 58 bottlenose dolphins observed in the project area during the blasting activities. However, this same dolphin was observed 30 minutes after the recorded jump, and behavior was documented as normal.
Additionally, as previously stated in the response to Comment 9, bottlenose dolphins residing in or transiting through the vicinity of the Port of Miami are likely habituated to the presence and noise from commercial and recreational vessels, sea planes, and helicopters frequently in the action area, and have two locations within Biscayne Bay to transit between the northern and southern portions of the Biscayne Bay to avoid the ACOE's confined blasting and dredging operations, if necessary. Also, dolphins in the action area will have short exposure to the ACOE's confined blasting activities and it is unlikely that any particular animals would be in the small danger zone near the explosives long enough to be subjected to repeated exposures.
Despite clear statutory language, the ACOE and NMFS appear to take the position that the incidental take of marine mammals during the lengthy blasting and dredging phase could be covered under successive one-year IHAs. To the contrary, the specified activity of the deepening project in the Port of Miami can be considered for MMPA purposes only under regulations and the issuance of subsequent LOAs, as section 101(a)(5)(D) of the MMPA specifies that an IHA can be issued for “periods not more than one year.” The legislative history of the MMPA, case law, and NMFS' own practice in issuing IHAs and LOAs all point to the need for the ACOE to apply for a rule in this context.
NMFS must administer the MMPA for the “benefit of the protected species rather than for the benefit of commercial exploitation.”
When these principles are applied, NMFS must adopt an interpretation of its section 101(a)(5) incidental take authority that recognizes the one-year limitation applied to IHAs and apply regulations (and subsequent LOA) requirements. Any other approach will fail to give sufficient protection to the many marine mammals that will be subjected to take and harassment in favor of expediting the development of the Port of Miami blasting and dredging project. NMFS cannot allow for such a result and must deny the ACOE's IHA application.
The choice of incidental take authorization is very important because it has consequences for the protection provided to marine mammals and the level of public involvement. An IHA will consider only the takes that occur over the course of one year to determine whether the impacts of the “specified activity” on marine mammals are negligible. An activity like the Port of Miami blasting and dredging operations will occur continuously over several years and will have greater impacts when considered in its entirety than it will for just a component of the activity conducted during a single year. To determine if there is a “negligible impact,” it is therefore necessary to consider the entire activity, not just a subset of the activity defined by one-year increments.
Per requirements of 50 CFR 216.104, the ACOE included the necessary information for their activity in its submission to NMFS requesting an IHA. NMFS worked with the ACOE and requested additional information in its original IHA application to ensure and determine, based upon the best available scientific evidence, that it was adequate and complete. For the proposed IHA (76 FR 71517, November 18, 2011), NMFS invited information, suggestions, and comments from the public for a period not to exceed 30 days from the date of publication in the
The only methods available for pre-treatment of hard/massive rock are confined blasting and the use of a punch-barge or hydrohammer. As part of the feasibility and EIS process, the ACOE consulted with NMFS and the USFWS under section 7 of the ESA to determine the impacts of both methods on listed and protected species in the action area. NMFS and USFWS have both documented that the use of a punch-barge or hydrohammer, which would work during daylight hours, strikes the rock approximately once every 60 seconds for up to 720 hits in a 12 hour period. This would increase during periods of extended daylight. This constant pounding would serve to disrupt animal behavior in the area. Using the punch-barge would also extend the length of the project, thus increasing any potential impacts to all fish and wildlife resources in the action area. The ACOE believes that confined blasting to remove the rock in the Port of Miami has the least environmental impact of all available methods. Utilization of a punch-barge would result in pressure being released into the water like an unconfined blast, without a reduction in associated pressure wave, which can lead to impacts to marine mammals, and fish kill at levels much higher than confined underwater blasting. The ACOE removed punch-barging as a viable pre-treatment methodology, which leaves confined blasting as the only method to pre-treat rock prior to removal by conventional dredging methodologies.
NMFS' SERO issued a Biological Opinion (BiOp) on September 8, 2011, that analyzes the project's effects on staghorn coral (
In order to provide an objective and quantitative assessment of the range and severity of any environmental effect from underwater blasting, it is necessary to be able to estimate the following parameters: The source level (
The Safety Zone is the zone beyond which peak pressure levels from blasting are predicted to be lower than the 83 kPa criterion, creating no adverse effects on marine mammals * * * This criterion was originally established for estimating the impacts of large unconfined explosions and was introduced in order to provide a more conservative range * * * when explosive or the marine animal approaches the sea surface (for which cases the explosive energy is reduced but the peak pressure is not) (page 686).
The report further specifies the determination of the safety zone radius:
The Safety Zone is the zone beyond which peak pressure levels from blasting are predicted to be lower than the 83 kPa criterion, creating no adverse effects * * * The propagation of the peak pressure is very much dependent on the hydrography specific to the site, the water depth and the sound propagation underwater (page 686).
The ACOE's IHA application frequently cites its 2005 blasting activities as a point of reference for the proposed blasting activities in 2012. These projects do not warrant the comparison, especially for the incidental take of dolphins as the ACOE contends. The project footprint is far larger in the present project than in 2005. The maximum weight of explosives has increased from 376 lbs (76 FR 71519) to 450 lbs with averages of two blasts per day for an estimated 600 days of blasting. Although, in its proposed calculations, ACOE has increased the danger zone for dolphins by 500 ft, this is insufficient accommodation relative to the large increase in blast pressure due to increased weight and frequency of blasting. Further, the safety zone calculation has not changed from the past blasting event in the current application. As detailed above, the safety zone is a critical component to ensure marine mammal safety.
Despite an incident during a 2005 blast reported in the “Protected Marine
The topography of the bottom of that area is very much shallow to the south, then an exceptionally steep drop off into the channel at 40+ ft ending at the bulkhead wall to the north. Westward, the channel continues and has a more gradual upward slope. At the time of the blast, one of the dolphins was at the surface in the shallows, which the other dolphin was underwater within the channel. The dolphin that was underwater showed a strong reaction to the blast. The animal jumped fully out of the water in a “breaching” fashion; behavior that had not been exhibited prior to the blast (ECOES, p. 18).
It is critical to note that based on the ACOE formula (which is proposed to remain the same in the current IHA application), the harassed dolphin was located 800 ft outside of the exclusion zone and still exhibited a strong adverse reaction to the blast described as “lower weight.” Considering the significant increase in weight maximum in the current project and the much increased frequency and duration of this project, it is clear that the mitigation and zone calculations are insufficient as proposed. In the ECOES report conclusion, the author also notes that the shallow channel and bathymetry of the project site, which remains the same (only expanded) in the current project has a great effect on the pressure and sound effect of the blasting agents: “This observation may be important to consider when formulating blast/watch plans for marine mammals in the future. It may be prudent to extend or contract the exclusion zone based on the bathymetry of the project site” (ECOES, p. 18).
The commenter recommends that NMFS and the ACOE adopt the model proposed in Godson (2010) and believes that Godson's report entitled “Blast emission criteria and detection methods for safeguarding of marine mammals in a blast environment” presents the most recent data available (
The Godson model utilizes an unconfined blast as is demonstrated by its use of −1.13 exponential in the model equation. The −1.13 exponential utilized in the blasting literature is the attenuation, or reduction, of the maximum pressure through water. This is not an accurate representation of the effects from the proposed confined blasting at Miami Harbor. Based on the in situ pressure measurements collected in 2005, the ACOE's blasting experts developed a similar model to assess the benefit of confinement of the blast, however, even with the knowledge that confinement of the detonation in rock significantly reduces the pressure wave (Hempen
To be able to collect the data requested by the Commission, the ACOE's contractor would have to lay out a network of hydrophones or pressure transducers before each blast, which requires entering the Bill Sadowski Critical Wildlife Area to lay the hydrophones or pressure transducers with a motorized vessel, and repeat the process to recover them after each blast, or it would require the ACOE to set up a network of vessels in the boundaries of the Bill Sadowski Critical Wildlife Area with a hydrophone or pressure transducer on each vessel. Hydrophone equipment systems have limitations gathering peak pressure data from blasting, and can be quickly overloaded if placed too close to the detonation; pressure transducers are better designed to measure blast pressures (Keevin, pers. comm.). Again, the vessels would have to enter the Bill Sadowski Critical Wildlife Area, which is in violation of the previously mentioned state law.
Several cetacean species and a single species of sirenian are known to or could occur in the Miami Harbor action area and off the Southeast Atlantic coastline (see Table 1 below). Species listed as endangered under the U.S. Endangered Species Act (ESA), includes the humpback (
Table 1 below outlines the marine mammal species and their habitat in the region of the project area.
The one species of marine mammal under NMFS jurisdiction known to commonly occur in close proximity to the blasting area of the Port of Miami is the Atlantic bottlenose dolphin, specifically the stocks living near the Port of Miami within Biscayne Bay (the Biscayne Bay stock) or transiting the outer entrance channel (Western North Atlantic Central Florida Coastal stock).
Atlantic bottlenose dolphins are distributed worldwide in tropical and temperate waters, and in U.S. waters occur in multiple complex stocks along
Biscayne Bay is a shallow estuarine system located along the southeast coast of Florida in Miami-Dade County. The Bay is generally shallow (depths less than 5 m [16.4 ft]) and includes a diverse range of benthic communities including seagrass beds, soft coral and sponge communities, and mud flats. The northern portion of Biscayne Bay is surrounded by the cities of Miami and Miami Beach and is therefore heavily influenced by industrial and municipal pollution sources. The water flow in this portion of Biscayne Bay is very restricted due to the construction of dredged islands (Bialczak
The Biscayne Bay stock of bottlenose dolphins is bounded by Haulover Inlet to the north and Card Sound Bridge to the south. This range corresponds to the extent of confirmed home ranges of bottlenose dolphins observed residing in Biscayne Bay by a long-term photo-ID study conducted by the Southeast Fisheries Science Center (Litz, 2007; SEFSC unpublished data). It is likely that the range of Biscayne Bay dolphins extends past these boundaries; however, there have been few surveys outside of this range. These boundaries are subject to change upon further study of dolphin home ranges within the Biscayne Bay estuarine system and comparison to an extant photo-ID catalog from Florida Bay to the south.
Dolphins residing within estuaries north of this stock along the southeastern coast of Florida are currently not included in a stock assessment report. There are insufficient data to determine whether animals in this region exhibit affiliation to the Biscayne Bay stock, the estuarine stock further to the north in the IRLES, or are simply transient animals associated with coastal stocks. There is relatively limited estuarine habitat along this coastline; however, the Intracoastal Waterway extends north along the coast to the IRLES. It should be noted that during 2003 to 2007, there were three stranded bottlenose dolphins in this region in enclosed waters. One of these had signs of human interaction from a boat strike and another was identified as an offshore morphotype of bottlenose dolphin.
Bottlenose dolphins have been documented in Biscayne Bay since the 1950's (Moore, 1953). Live capture fisheries for bottlenose dolphins are known to have occurred throughout the southeastern U.S. and within Biscayne Bay during the 1950's and 1960's; however, it is unknown how many individuals may have been removed from the population during this period (Odell, 1979; Wells and Scott, 1999).
The Biscayne Bay bottlenose dolphin stock has been the subject of an ongoing photo-ID study conducted by the NMFS SEFSC since 1990. From 1990 to 1991, preliminary information was collected focusing on the central portion of Biscayne Bay. The survey was re-initiated in 1994, and it was expanded to include the northern portion of Biscayne Bay and south to the Card Sound Bridge in 1995 (SEFSC unpublished data; Litz, 2007). Through 2007, the photo-ID catalog included 229 unique individuals. Approximately 80% of these individuals may be long-term residents with multiple sightings over the 17 years of the study (SEFSC, unpublished data). Analyses of the sighting histories and associations of individuals from the Biscayne Bay segregated along a north/south gradient (Litz, 2007).
Remote biopsy samples of Biscayne Bay animals were collected between 2002 and 2004 for analyses of population genetic structure and persistent organic pollutant concentrations in blubber. Genetic structure was investigated using both mitochondrial DNA and nuclear (microsatellite) markers, and the data from Biscayne Bay were compared to data from Florida Bay dolphins to the south (Litz, 2007). Within Biscayne Bay, dolphins sighted primarily in the northern half of Biscayne Bay were significantly differentiated from those sighted primarily in the southern half at the microsatellite loci but not at the mitochondrial locus. There was not sufficient genetic information between these groups to indicate true population subdivision (Litz, 2007). However, genetic differentiation was found between the Biscayne Bay and Florida Bay dolphins in both markers (Litz, 2007). The observed genetic differences between resident animals in Biscayne Bay and those in an adjacent estuary combined with the high levels of sight fidelity observed, demonstrate that the resident Biscayne Bay bottlenose dolphins are a demographically distinct population stock.
The total number of bottlenose dolphins in the Biscayne Bay stock is unknown. During small boat surveys between 2003 and 2007, 157 unique individuals were identified using standard methods, however, this catalog size does not represent a valid estimate of population size because the residency patterns of dolphins in Biscayne Bay is not fully understood. Litz (2007) determined that 69 animals in Biscayne Bay have a northern home range. Based on Waring
On the Atlantic coast, Scott
The coastal morphotype is morphologically and genetically distinct from the larger, more robust morphotype primarily occupying habitats further offshore (Hoelzel
The genetic results and spatial patterns observed in aerial surveys indicate both regional and seasonal differences in the longitudinal distribution of the two morphotypes in coastal Atlantic waters. Generally, from biopsy samples collected, the coastal morphotype is found in nearshore waters, the offshore morphotype in deeper waters and a spatial overlap between the two morphotypes in intermediate waters. More information on the seasonal differences and genetic studies off of the Carolina's, Georgia, and Florida, differentiating morphotypes of bottlenose dolphins can be found online in the NMFS stock assessment reports.
In summary, the primary habitat of the coastal morphotype of bottlenose dolphin extends from Florida to New Jersey during summer months and in waters less than 65.6 ft (20 m) deep, including estuarine and inshore waters.
In addition to inhabiting coastal nearshore waters, the coastal morphotype of bottlenose dolphin also inhabits inshore estuarine waters along the U.S. east coast and Gulf of Mexico (Wells
The spatial extent of these stocks, their potential seasonal movements, and their relationships with estuarine stocks are poorly understood. More information on the migratory movements and genetic analyses of bottlenose dolphins can be found online in the NMFS stock assessment reports.
The NMFS stock assessment report addresses the Central Florida Coastal stock, which is present in coastal Atlantic waters from 29.4° North south to the western end of Vaca Key (approximately 24.69° North to 81.11° West) where the stock boundary for the Florida Keys stock begins (see Figure 1 of the NMFS Stock Assessment Report). There has been little study of bottlenose dolphin stock structure in coastal waters of southern Florida; therefore the southern boundary of the Central Florida stock is uncertain. There is no obvious boundary defining the offshore extent of this stock. The combined genetic and logistic regression analysis (Garrison
Aerial surveys to estimate the abundance of coastal bottlenose dolphins in the Atlantic were conducted during winter (January to February) and summer (July to August) of 2002. Abundance estimates for bottlenose dolphins in each stock were calculated using line-transect methods and distance analysis (Buckland
The estimated best and minimum population for the Central Florida Coastal Stock is 6,318 and 5,094 animals, respectively. There are insufficient data to determine the population trends for this stock. From 1995 to 2001, NMFS recognized only a single migratory stock of coastal bottlenose dolphins in the western North Atlantic, and the entire stock was listed as depleted. This stock structure was revised in 2002 to recognize both multiple stocks and seasonal management units and again in 2008 and 2010 to recognize resident estuarine stocks and migratory and resident coastal stocks. The total U.S. fishery-related mortality and serious injury for the Central Florida Coastal stock likely is less than 10% of the calculated PBR, and thus can be considered to be insignificant and approaching zero mortality and serious injury rate. However, there are commercial fisheries overlapping with this stock that have no observer coverage. This stock retains the depleted designation as a result of its origins from the originally delineated depleted coastal migratory stock. The species is not listed as threatened or endangered under the ESA, but this is a strategic stock due to the depleted listing under the MMPA.
Further information on the biology and local distribution of these species and others in the region can be found in ACOE's IHA application, which is available upon request (see
In general, potential impacts to marine mammals from explosive detonations could include mortality, serious injury, as well as Level A harassment (injury) and Level B harassment. In the absence of mitigation, marine mammals could be killed or injured as a result of an explosive detonation due to the response of air cavities in the body, such as the lungs and bubbles in the intestines. Effects would be likely to be most severe in near surface waters where the reflected shock wave creates a region of negative pressure called “cavitation.”
A second potential possible cause of mortality (in the absence of mitigation) is the onset of extensive lung hemorrhage. Extensive lung hemorrhage is considered debilitating and potentially fatal. Suffocation caused by lung hemorrhage is likely to be the major cause of marine mammal death from underwater shock waves. The estimated range for the onset of extensive lung hemorrhage to marine mammals varies depending upon the animal's weight, with the smallest mammals having the greatest potential hazard range.
NMFS' criteria for determining potential for non-lethal injury (Level A harassment) from explosives are the peak pressure that will result in: (1) The onset of slight lung hemorrhage, or (2) a 50 percent probability level for a rupture of the tympanic membrane (TM). These are injuries from which animals would be expected to recover on their own.
NMFS has established dual criteria for what constitutes Level B harassment: (1) An energy based temporary threshold shift (TTS) in hearing at received sound levels of 182 dB re 1 μPa
The primary potential impact to the Atlantic bottlenose dolphins occurring in the Port of Miami action area from the detonations is Level B harassment incidental to noise generated by explosives. In the absence of any monitoring or mitigation measures, there is a very small chance that a marine mammal could be injured, seriously injured, or killed when exposed to the energy generated from an explosive force on the sea floor. However, the ACOE and NMFS believe that the monitoring and mitigation measures will preclude this possibility in the case of this particular specified activity.
Non-lethal injurious impacts (Level A harassment) are defined in this IHA as TM rupture and the onset of slight lung injury. The threshold for Level A harassment corresponds to a 50 percent rate of TM rupture, which can be stated in terms of an energy flux density (EFD) value of 205 dB re 1 μPa
Level B (non-injurious) harassment includes temporary (auditory) threshold
The threshold for sub-TTS behavioral harassment is 177 dB re 1 μPa
For a fully confined blast, the pressure at the edge of the danger zone is expected to be 6 psi. Utilizing the pressure data collected the Miami Harbor Phase II project in 2005, for a maximum charge weight of 450 lbs in a fully confined blast, the pressure is expected to be 22 psi approximately 700 ft (213.4 m) from the blast, which is below the threshold for Level B harassment (
The ACOE is planning to implement, and NMFS has required, a series of monitoring and mitigation measures to protect marine mammals from the potential impacts of the confined blasting activities. The ACOE has designated a “danger zone” as the area within which the potential for Level B harassment occurs, and the “exclusion zone” as the area within which if an animal crosses and enters that zone then the confined blast will be delayed until the animal leaves the zone of its own volition. The exclusion zone is larger than the area where the ACOE has determined that Level B harassment will occur, so if the monitoring and mitigation measures implemented are successful as expected, and no detonation occurs when an animal is inside of the exclusion zone, no take by Level B harassment is likely to occur. However, to be conservative, the ACOE has calculated the potential exists for Level B harassment and is pursuing an IHA from NMFS. More information on how the danger and exclusion zones are determined is included in the “Mitigation” section of this document (see below).
In a previous monitoring report for ACOE's Miami Harbor Phase II project in 2005, it was noted that a bottlenose dolphin outside the exclusion zone, in the deeper water channel, exhibited a startle response immediately following a confined blast. Details of that event from the monitoring report are included below:
Any animals near the exclusion zone were watched carefully during the blast for any changes in behavior or noticeable reaction to the blast. The only observation that showed signs of a possible reaction to the blast was on July 27, when two dolphins were in the channel west of the blast. The dolphins were stationary at approximately 2,400 ft (731.5 m) from the blast array, feeding and generally cavorting. Due to the proximity of the dolphins, the drill barge was contacted prior to the blast to confirm that the exclusion zone calculation was 1,600 ft (487.7 m) for the lower weight of explosives used that day. The topography of the bottom in that area is very shallow (approximately 3.3 ft [1 m]) to the south, then an exceptionally steep drop off into the channel at 40 plus ft ending at the bulkhead wall to the north. Westward, the channel continues and has a more gradual upward slope. At the time of the blast, one of the dolphins was at the surface in the shallows, while the other dolphin was underwater within the channel. The dolphin that was underwater showed a strong reaction to the blast. The animal jumped fully out of the water in a `breaching' fashion; behavior that had not been exhibited prior to the blast. The animal was observed jumping out of the water immediately before the observers heard the blast suggesting that the animal reacted to the blast and not some other stimulus. It is probable that, because this animal was located in the channel, the sound and pressure of the blast traveled either farther or was more focused through the channeling and the reflection from the bulkhead, thus causing the animal to react even though it was well outside the safety radius. These two dolphins were tracked for the entire 30 min post blast period and no obvious signs of distress or behavior changes were observed. Other animals observed near the safety radius during the blast were all to the south of the blasting array, well up on the seagrass beds or in the pipe channel that runs through the seagrass beds. None of these animals showed any reaction to the blast.
Individual dolphins from other stocks and within the Biscayne Bay and Western North Atlantic Central Florida Coastal stocks potentially move both inshore and offshore of Biscayne Bay due to the openness of this bay system and closeness of the outer continental shelf. These movements are not fully understood and the possibility exists that these other stocks may be affected in the same manner as the Biscayne Bay and Western North Atlantic Central Florida Coastal stocks.
Based on the data from the Miami Harbor project in 2005 and the implementation of the monitoring and mitigation measures, the ACOE and NMFS expects limited potential effects of the construction and confined blasting activities on marine mammals in the Port of Miami action area.
No information is currently available that indicates resident bottlenose dolphins in the action area specifically utilize the inner and outer channels, walls, and substrate of the Port of Miami as habitat for feeding, resting, mating, or other biologically significant functions. The bottom of the channel has been previously blasted, and the rock and sand dredged. The walls of the channels are composed of vertical rock. The ACOE acknowledges that while the port may not be suitable foraging habitat for bottlenose dolphins in Biscayne Bay, it is likely that dolphins may use the area to traverse to and from North Biscayne Bay or offshore via the main channel (
The temporary modification of the action area by the construction and confined blasting activities may potentially impact the two stocks of bottlenose dolphins expected to be present in the Port of Miami, however, these impacts are not expected to be adverse. If animals are using the Port of Miami project area to travel from south to north Biscayne Bay or vice-versa and/or exiting the Biscayne Bay via the main shipping channel, the construction and confined blasting activities may delay or detour their movements.
Confined blasting within the boundaries of the Port of Miami will be limited both spatially and temporally. The explosives utilized in the confined blasting operations are water soluble and non-toxic. If an explosive charge is unable to be fired and must be left in the drill hole, it is designed to break down. Also, each drill hole has a booster with detonator and detonation cord. Most of the detonation cord is recovered onto the drill barge by pulling it back onboard the drill barge after the confined blasting event. Small amounts of detonation cord may remain in the water after the confined blasting event has taken place, and will be recovered by small vessels with scoop nets. Any material left in the drill hole after the confined blast event will be recovered
With regard to prey species (mainly fish), a very small number of fish are expected to be impacted by the Miami Harbor project, based on the results of the 2005 blasting project in Miami Harbor. That project consisted of 40 confined blast events over a 38 day time frame. Of these 40 confined blast events, 23 were monitored (57.5% of the total) by the State, and injured and dead fish were collected after the all clear was given (the “all-clear” is normally at least two to three min after the shot is fired, since seagulls and frigate birds quickly learned to approach the confined blast site and swoop in to eat some of the stunned, injured, and dead fish floating on the surface of the water). State biologists and volunteers collected the carcasses of the floating fish (note that not all dead fish float after a blasting event, and due to safety concerns, there are no plans to put divers on the bottom of the channel in the blast zone to collect non-floating fish carcasses. The fish were described to the lowest taxonomic level possible (usually species) and the injury types were categorized. The data forms are available from the FWC and ACOE upon request.
A summary of those data shows that 24 different genera were collected during the previous Miami Harbor blasting project. The species with the highest abundance were white grunts (
In the past, to reduce the potential for fish to be injured or killed by the confined blasting, the resource agencies have requested, and ACOE has allowed, that confined blasting contractors utilize a small, unconfined explosive charge, usually a 1 lb (0.5 kg) booster, detonated about 30 seconds before the main confined blast, to drive fish away from the confined blasting zone. It is assumed that noise or pressure generated by the small charge will drive fish from the immediate area, thereby reducing impacts from the larger and potentially more-damaging confined blast. Blasting companies use this method as a “good faith effort” to reduce the potential impacts to aquatic natural resources. The explosives industry recommends firing a “warning shot” to frighten fish out of the area before seismic exploration work is begun (Anonymous, 1978 in Keevin
There are limited data available on the effectiveness of fish scare charges at actually reducing the magnitude of fish kills, and the effectiveness may be based on the fish's life history. Keevin
These results call into question the effectiveness of this minimization methodology; however, some assert that based on the monetary value of fish (American Fishery Society, 1992 in Keevin
To calculate the potential loss of prey species from the project area as an impact of the confined blasting events, the ACOE used a 12.5 fish kill per blasting event estimate based on the Miami Harbor 2005 project, and multiplied it by the 40 shots, reaching a total estimate of 500 floating fish. As stated previously, not all carcasses float to the surface and there is no way to estimate how many carcasses did not float. Using an estimate of 12.5 fish kill per blasting event, and the maximum 600 detonations for the entire multi-year project, the minimum number of fish expected to be killed by the project is approximately 7,500 fish across the entire 28,500 ft (8,686.8 m) long channel footprint, assuming the worst case scenario and the entire channel needs to be blasted.
NMFS anticipates that the action will result in no significant impacts to marine mammal habitat beyond rendering the areas immediately around the Port of Miami less desirable shortly after each confined blasting event and during dredging operations and potentially eliminating a relatively small amount of locally available prey. The impacts will be localized and instantaneous. Impacts to marine mammal habitat, as well as invertebrate
In order to issue an ITA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
Over the last 10 years, the ACOE's Jacksonville District has been collecting data concerning the effects of confined blasting projects on marine mammals. This effort began in the early 1990's when the ACOE contracted with Dr. Calvin Koyna, Precision Blasting Services, to review previous ACOE blasting projects. The ACOE also received recommendations from the Florida Fish and Wildlife Conservation Commission (FWC, then known as the Florida Department of Natural Resources) and the USFWS to prepare for a harbor deepening project at Port Everglades, Florida, which was conducted in the mid-1980s. The recommendations prepared for the project were specifically aimed at protecting endangered manatees and endangered and threatened sea turtles.
The ACOE will develop and implement four zones as protective measures that are based on the use of an unconfined blast. The use of unconfined blast in development of these protective zones for a confined blast will increase the conservation measures afforded marine mammals in the action area. These four zones are referred to as the danger zone (
These four zone calculations will be included as part of the specifications package that the contractors will bid on before the project is awarded.
As part of the ACOE's Miami Harbor Phase II project, the ACOE monitored the confined blasting project and collected data on the pressures associated with confined blasts, while employing a formula to calculate buffer and exclusion zones that would protect marine mammals. Results from the pressure monitoring at Miami Harbor Phase II demonstrate that stemming each drill hole reduces the blast pressure entering the water (Nedwell and Thandavamoorthy, 1992; Hemen
The following standard conditions have been incorporated into the project specifications to reduce the risk to marine mammals in the project area. While this application is specific to bottlenose dolphins, these specifications are written for all protected species that may be in the project area.
If confined blasting is planned during the period of November 1 through March 31, significant operational delays should be expected due to the increased likelihood of manatees being present within the project area. If possible, avoid scheduling confined blasting during the period from November 1 through March 31. In the area where confined blasting could occur or any area where confined blasting is required to obtain channel design depth, the following marine mammal protective measures shall be employed, before, during, and after each confined blast:
(A) The USFWS and NMFS must review the contractor's approved Blasting Plan prior to any confined blasting activities. (Copies of this blasting plan shall be provided to FDEP and FWC as a matter of comity.) This confined blasting proposal must include information concerning a watch program and details of the confined blasting events. This information must be submitted at least 30 days prior to the date of the confined blast(s) to the following addresses:
(1) FWC-ISM, 620 South Meridian Street, Mail Stop 6A, Tallahassee, FL 32399-1600 or
(2) NMFS Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.
(3) USFWS, 1339 20th Street, Vero Beach, Florida 32960-3559 or 6620 Southpoint Drive South, Suite 310, Jacksonville, FL 32216-0912 (project location dependent).
(4) NMFS Southeast Regional Office, Protected Species Management Branch, 263 13th Avenue South, St. Petersburg, FL 33701.
In addition to plan review, Dr. Allen Foley shall be notified at the initiation and completion of all in-water blasting (
(B) The contractor's blasting plan shall include at least the following information, as required by the project's specifications:
(1) A list of PSOs, their qualifications, and positions for the watch, including a map depicting the locations for boat or land-based PSOs. Qualified PSOs must have prior on-the-job experience observing for protected species during previous in-water blasting events where the blasting activities were similar in nature to this project.
(2) The amount of explosive charge, the explosive charge's equivalency in TNT, how it will be executed (depth of drilling, stemming, in-water, etc.), a drawing depicting the placement of the charges, size of the exclusion zone, and how it will be marked (also depicted on a map), tide tables for the blasting event(s), and estimates of times and days for blasting events (with an understanding this is an estimate, and may change due to weather, equipment, etc.).
(C) For each explosive charge placed, four zones will be calculated, denoted on monitoring reports and provided to PSOs before each blast for incorporation in the watch plan for each planned detonation. All of the zones will be noted by buoys for each of the blasts. These zones are:
(1) Danger Zone: The danger zone radius is equal to 260 (79.25 m) times the cube root of the weight of the explosive charge in lbs per delay (equivalent weight of tetryl or TNT). The radius of the danger zone has been determined to be equal to or larger than the distance from the charge to a location where a marine mammal would experience Level B harassment.
Danger zone (ft) = 260 (lbs/delay)
The U.S. Navy Dive Manual and the FWC Guidelines (2005) set the danger zone formula for an unconfined blast suspended in the water column, which is as follows:
(2) Exclusion Zone: The exclusion zone radius is equal to the danger zone plus a buffer of 500 ft. Detonation will not occur if a marine mammal is known to be (or based on previous sightings, may be) within the exclusion zone.
(3) Safety Zone: The safety zone is equal to 520 (158.50 m) times the cube root of the weight of the explosive charge in lbs per delay (equivalent weight of tetryl or TNT).
(4) Watch Zone: The watch zone is three times the radius of the danger zone to ensure that animals entering or traveling close to the exclusion zone are sighted and appropriate actions can be implemented before or as the animal enters the any impact areas (
(D) The watch program shall begin at least one hour prior to the scheduled start of blasting to identify the possible presence of marine mammals. The watch program shall continue for at least 30 minutes (min) after detonations are complete.
(E) The watch program shall consist of a minimum of six PSOs. Each PSO shall be equipped with a two-way radio that shall be dedicated exclusively to the watch. Extra radios should be available in case of failures. All of the PSOs shall be in close communication with the blasting sub-contractor in order to halt the blast event if the need arises. If all PSOs do not have working radios and cannot contact the primary PSO and the blasting sub-contractor during the pre-blast watch, the blast shall be postponed until all PSOs are in radio contact. PSOs will also be equipped with polarized sunglasses, binoculars, a red flag for back-up visual communication, and a sighting log with a map to record sightings. All confined blasting events will be weather dependent. Climatic conditions must be suitable for optimal viewing conditions, to be determined by the PSOs.
(F) The watch program shall include a continuous aerial survey to be conducted by aircraft, as approved by the Federal Aviation Administration (FAA). The confined blasting event shall be halted if an animal(s) is sighted within the exclusion zone, within the five min before the explosives are scheduled to be detonated. An “all clear” signal must be obtained from the aerial PSO before the detonation can occur. The confined blasting event shall be halted immediately upon request of any of the PSOs. If animals are sighted, the blast event shall not take place until the animal(s) moves out of the exclusion zone under its own volition. Animals shall not be herded away or intentionally harassed into leaving. Specifically, the animals must not be intentionally approached by project watercraft or aircraft. If the animal(s) is not sighted a second time, the event may resume 30 min after the last sighting.
(G) An actual delay in blasting shall occur when a marine mammal is detected within the exclusion zone at the point where the blast countdown reaches the T-minus five min. At that time, if an animal is in or near the safety zone, the countdown is put on hold until the zone is completely clear of marine mammals and all 30 min sighting holds have expired. Animal movements into the safety zone prior to that point are monitored closely, but do not necessarily stop the countdown. The exception to this would be stationary animals that do not appear to be moving out of the area or animals that begin moving into the safety zone late in the countdown. For these cases, holds on the T-minus 15 minutes may be called to keep the shipping channel open and minimize the impact on the Port of Miami operations.
(H) The PSOs and contractors shall evaluate any problems encountered during blasting events and logistical solutions shall be presented during blasting events and logistical solutions shall be presented to the Contracting Officer. Corrections to the watch shall be made prior to the next blasting event. If any one of the aforementioned conditions is not met prior to or during the blasting, the watch PSOs shall have the authority to terminate the blasting event, until resolution can be reached with the Contracting Officer. The Contracting Officer will contact FWC, USFWS, and NMFS.
(I) If an injured or dead marine mammal is sighted after the confined blast event, the PSOs on watch shall contact the ACOE and the ACOE will then contact the proper Federal and/or state natural resource agencies.
The PSOs shall maintain contact with the injured or dead marine mammal
(J) Within 30 days after completion of all blasting events, the primary PSO shall submit a report the ACOE, who will provide it to the USFWS, NMFS, FWC, and FLDEP providing a description of the event, number and location of animals seen and what actions were taken when animals were seen. Any problems associated with the event and suggestions for improvements shall also be documented in the report.
The ACOE will rely upon the same monitoring protocol developed for the Port of Miami project in 2005 (Barkaszi, 2005) and published in Jordan
A watch plan will be formulated based on the required monitoring radii and optimal observation locations. The watch plan will consist of at least five PSOs including at least one aerial PSO, two boat-based PSOs, and two PSOs stationed on the drill barge (see Figures 13, 14, 15, and 16 of the ACOE's IHA application). This watch plan will be consistent with the program that was utilized successfully at Miami Harbor in 2005. The sixth PSO will be placed in the most optimal observation location (boat, barge, or aircraft) on a day-by-day basis depending on the location of the blast and the placement of dredging equipment. This process will ensure complete coverage of the four zones as well as any critical areas. The watch will begin at least one hour prior to each blast and continue for one half hour after each blast (Jordan
The aerial PSO will fly in a turbine engine helicopter (bell jet ranger) with the doors removed. This provided maximum visibility of the watch and safety zones as well as exceptional maneuverability and the needed flexibility for continual surveillance without fuel stops or down time, minimization of delays due to weather or visibility and the ability to deliver post-blast assistance. Additionally, at least six commercial helicopter, small Cessna, and ultra-light companies operate on Key Biscayne, immediately south of the Port of Miami and offer “flight-seeing” operations over downtown Miami, Bayfront, and the Port of Miami. Recreational use of ultra-lights launching from Key Biscayne is also common in the area, as are overflights of commercial seaplanes, jet aircraft, and helicopters. The action area being monitored is a high traffic area, surrounded by an urban environment where animals are potentially exposed to multiple overflights daily. ACOE conferred with Mary Jo Barkaszi, owner and chief PSO of ECOES, Inc., a protected species monitoring company with 25 years experience, and has worked on the last five blasting events involving marine mammal concerns for the ACOE throughout the country. All of these blasting events had bottlenose dolphins commonly occur in the project area. Ms. Barkaszi states that in her experience, she has not observed bottlenose dolphins diving or fleeing the area because a helicopter is hovering nearby at 500 ft (pers. comm., September 12, 2011). During monitoring events, the helicopter hovers at 500 ft above the watch zone and only drops below that level when helping to confirm identification of something small in the water, like a sea turtle. The ACOE and NMFS do not expect the incidental take of bottlenose dolphins, by Level B harassment, from helicopter-based monitoring of the blasting operations and the ACOE is not requesting take.
Boat-based PSOs are placed on one of two vessels, both of which have attached platforms that place the PSOs eyes at least 10 ft (3 m) above the water surface enabling optimal visibility of the water from the vessels. The boat-based PSOs cover the safety zone where waters are deep enough to safely operate the boats without any impacts to seagrass resources. The shallow seagrass beds south of the project site relegate the PSO boats mainly to the channel east and west of the blast zone. At no time are any of the PSO boats allowed in shallow areas where propellers could potentially impact the fragile seagrass.
At times, turbidity in the water may be high and visibility through the water column may be reduced so that animals are not seen below the surface as they should be under normal conditions. This may be more common on an ebb tide or with a sustained south wind. However, animals surfacing in these conditions are still routinely sighted from the air and from the boats, thus the overall PSO program is not compromised, only the degree to which animals were tracked below the surface. Adjustments to the program are made accordingly so that all protected species are confirmed out of the safety zone prior to the T-minus five min, just as they are under normal visual conditions. The waters within the project area are exceptional for observation so that the decreased visibility below the surface during turbid conditions make the waters more typical of other port facilities where PSO programs are also effective throughout the U.S., for example New York and Boston harbors, where this monitoring method has also been employed.
All PSOs are equipped with marine-band VHF radios, maps of the blast zone, polarized sunglasses, and appropriate data sheets. Communications among PSOs and with the blaster is of critical importance to the success of the watch plan. The aerial-based PSO is in contact with vessel and drill barge-based PSOs and the drill barge with regular 15 min radio checks throughout the watch period. Constant tracking of animals spotted by any PSO is possible due to the amount and type of PSO coverage and the excellent communications plan. Watch hours are restricted to between two hours after sunrise and one hour before sunset. The watch begins at least one hour prior to the scheduled blast and is continuous throughout the blast. Watch continues for at least 30 min post blast at which time any animals that were seen prior to the blast are visually re-located whenever possible and all PSOs in boats and in the aircraft assisted in cleaning up any blast debris.
If any marine mammals are spotted during the watch, the PSO notifies the aerial-based PSO and/or the other PSOs via radio. The animals is located by the aerial-based PSO to determine its range and bearing from the blast array. Initial locations and all subsequent re-acquisitions are plotted on maps. Animals within or approaching the safety zone are tracked by the aerial and boat-based PSOs until they exited the safety zone. Anytime animals are sighted near the safety zone, the drill barge is alerted as to the animal's proximity and some indication of any potential delays it might cause.
If any animal(s) is sighted inside the safety zone and not re-acquired, no blasting is authorized until at least 30 minutes has elapsed since the last sighting of that animal(s). The PSOs on watch will continue the countdown up until the T-minus five minute point. At this time, the aerial-based PSO confirms that all animals are outside the safety zone and that all holds have expired prior to clearing the drill barge for the T-minus five min notice. A fish scare charge will be fired at T-minus five min and T-minus one min to minimize
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” NMFS implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
The ACOE will be conducting a study on fish kill associated with confined underwater blasting that will provide information on the effects of confined underwater blasting on prey species for dolphins in the project area. This study will determine the minimum distance from the blast array, based on charge weight, at which fish will not be killed, or injured (the “lethal dose of zero” distance) by confined underwater blasting. Similar studies have been completed for open water (unconfined) blasts as cited by Hempen and Keevin (1995), Keevin
Additionally, ACOE will provide sighting data for each blast to researchers at NMFS Southeast Fisheries Science Center's marine mammal program and any other researchers working on dolphins in the project area to add to their database of animal usage of the project area. The ACOE will rely upon the same monitoring protocol developed for the Port of Miami project in 2005 (Barkaszi, 2005) and published in Jordan
The ACOE plans to coordinate monitoring with the appropriate Federal and state resource agencies, and will provide copies of all relevant monitoring reports prepared by their contractors. After completion of all detonation and dredging events, the ACOE will submit a summary report to regulatory agencies.
Within 30 days after completion of all blasting events, the lead PSO shall submit a report to the ACOE, who will provide it to NMFS. The report will contain the PSO's logs (including names and positions during the blasting events), provide a description of the events, environmental conditions, number and location of animals sighted, the behavioral observations of the marine mammals, and what actions were taken when animals were sighted in the action area of the project. Any problems associated with the event and suggestions for improvements shall also be documented in the report. A draft final report must be submitted to NMFS within 90 days after the conclusion of the blasting activities. The report would include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA, including dates and times of detonations as well as pre- and post-blasting monitoring observations. A final report must be submitted to NMFS within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury, serious injury or mortality, ACOE will immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation, Office of Protected Resources, NMFS at 301-427-8401 and/or by email to
• Time, date, and location (latitude/longitude) of the incident;
• Description of the incident;
• Status of all noise-generating source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with ACOE to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ACOE may not resume their activities until notified by NMFS via letter or email, or telephone.
In the event that ACOE discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that ACOE discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
The Biscayne Bay stock of Atlantic bottlenose dolphins is bounded by Haulover Inlet to the north and Card Sound Bridge to the south. Biscayne Bay is 428 square mi (mi
To determine the maximum area of Biscayne Bay in which bottlenose dolphins may experience pressure levels greater than or equal to the 23 psi threshold for explosives less than 2,000 lb (907.2 kg), which has the potential to result in Level B harassment due to temporary threshold shift (TTS) and associated behavioral disruption, the ACOE may utilize a maximum charge weight of 450 lb (204.1 kg) with a calculated danger zone of 1,995 ft (608.1 m). Using this radius, the total area of this zone is approximately 0.1% of Biscayne Bay (12,503,617 ft
Utilizing the pressure data collected the Miami Harbor Phase II project in 2005, for a maximum charge weight of 450 lbs in a fully confined blast, the pressure is expected to be 22 psi approximately 700 ft (213.4 m) from the blast, which is below the threshold for Level B harassment (
Litz (2007) identified 69 individuals of the Biscayne Bay stock that she classified as the “northern dolphins” meaning animals with a mean sighting history from 1994 to 2004 north of 25.61° North. The photo-ID study that Litz's data is based on encompassed an area of approximately 200 mi
Table 4 (below) presents the estimated incidental take, by Level B harassment, for varying charge weight delays likely to be used during the blasting activities and the estimated impacts based on the population estimates used in this analysis. In all cases, less than one bottlenose dolphin is expected to be taken incidental to each blasting event (0.049 minimum to 0.162 maximum). This assumes that the distribution of bottlenose dolphins is equal throughout all of Biscayne Bay.
The ACOE accessed the NMFS SEFSC photo-ID survey data from 1990 to 2004 in Biscayne Bay via the OBIS-Seamap database (
Reviewing the data from the Miami Harbor Phase II project in 2005, the ACOE noted that for the 40 detonations, 28% of all animals sighted within the action area (Fisherman's Channel) were bottlenose dolphins (the other animals sighted were manatees and sea turtles). Bottlenose dolphins were sighted inside the exclusion zone 12 times with a total of 30 individuals, with an average of 2.5 animals per sighting out of the total 58 bottlenose dolphins recorded during the project; therefore, groups of dolphins entered the exclusion zone multiple times. Also, dolphins entered the exclusion zone during 30% of the blasting events. Not all of the incidents where dolphins entered the exclusion zone resulted in a project delay, it is dependent upon when during the countdown the animals cross the line demarcating the exclusion zone, and how long they stay in the exclusion zone.
During the Miami Harbor Phase II project in 2005, bottlenose dolphins in
As a worst case, using the area of the danger zone, and recognizing that the Port of Miami is within the boundaries of the northern area described in Litz (2007), and that the danger zone of any blasting event using equal to or less than 450 lbs/delay will be approximately 0.1% of Biscayne Bay, the ACOE assumes that because animals are not evenly distributed throughout Biscayne Bay, that they travel as single individuals or in groups (as documented in the OBIS-Seamap data and the monitoring data from the Miami Harbor Phase II project in 2005), and that without any monitoring and mitigation measures to minimize potential impacts, up to three bottlenose dolphins from the Biscayne Bay stock may be taken, by Level B harassment, incidental to each blasting event.
Assuming that the delays will be spread equally across the action area and using the calculation of 29 delays and that three bottlenose dolphins would be inside the danger zone, 15 of the delayed blasting events would take place in Biscayne Bay since it compromises 52% of the action area. Three bottlenose dolphins times 15 detonations is equal to 45 bottlenose dolphins potentially exposed to an underwater sound and pressure over a 1-year period for an IHA incidental to the blasting activities at the Port of Miami.
The Western North Atlantic Central Florida Coastal stock of bottlenose dolphins is present in the coastal Atlantic waters shallower than 65.6 ft (20 m) in depth between latitude 29.4° North to the western end of Vaca Key (approximately 29.69° North to 81.11° West) where the stock boundary for the Florida Key stock begins, with an area of 3,007 mi
The same calculations for assessing the potential impacts to bottlenose dolphins from the blasting activities that were used for the Biscayne Bay stock were also applied to this stock. To determine the maximum area of the coastal Atlantic in which bottlenose dolphins may experience pressure levels greater than or equal to the 23 psi threshold for explosives less than 2,000 lb (907.2 kg), which has the potential to result in Level B harassment due to TTS and associated behavioral disruption, the ACOE may utilize a maximum charge weight of 450 lb (204.1 kg) with a calculated danger zone of 1,995 ft (608.1 m). Using this radius, the total area of this zone is approximately 0.015% of coastal Atlantic where this stock is expected to occur).
For an open-water, unconfined blast, the pressure edge of the danger zone is expected to be 23 psi. For a fully confined blast, the pressure at the edge of the danger zone is expected to be 6 psi. Utilizing the pressure data collected the Miami Harbor Phase II project in 2005, for a maximum charge weight of 450 lbs in a fully confined blast, the pressure is expected to be 22 psi approximately 700 ft (213.4 m) from the blast, which is below the threshold for Level B harassment (
Waring
Table 5 (below) presents the estimated incidental take, by Level B harassment, for varying charge weight delays likely to be used during the blasting activities and the estimated impacts based on the population estimates used in this analysis. In all cases, less than one bottlenose dolphin is expected to be taken incidental to each blasting event (0.102 minimum to 0.948 maximum). This assumes that the distribution of bottlenose dolphins is equal throughout all of the stock's range.
Other than the aerial surveys conducted by NMFS used to develop the stock assessment report, the ACOE has not been able to locate any additional photo-ID or habitat usage analysis. As a result, the ACOE is unable to determine if animals are evenly distributed throughout the stock's range, particularly in the southernmost portion of the stock's range where the action area is located.
To be conservative, the ACOE will use the same assumptions for the Western North Atlantic Central Florida Coastal stock as was used for the Biscayne Bay stock. Reviewing the data from the Miami Harbor Phase II project in 2005, the ACOE noted that for the 40 detonations, 28% of all animals sighted within the action area (Fisherman's Channel) were bottlenose dolphins (the
During the Miami Harbor Phase II project in 2005, bottlenose dolphins in the exclusion zone triggered delays on four occasions during the 13 blasting events (31%). If the maximum 313 planned detonations for the duration of the one year IHA (equal to 365 calendar days/year minus 52 Sundays/year [no confined blasting will occur on Sundays) have an equal percentage of delays as the 2005 project (assuming construction starts in June with blasting June, 2012 to June, 2013 timeframe, with no blasting on Sundays), 94 of the detonations would be delayed for some period of time due to the presence of protected species and 29 of those delays would specifically be for bottlenose dolphins.
As a worst case, using the area of the danger zone, and that the danger zone of any blasting event using equal to or less than 450 lbs/delay will be approximately 0.009% of the stock's range. The ACOE assumes that because animals are not evenly distributed throughout the stock's range, that they travel as single individuals or in groups (as documented in the monitoring data from the Miami Harbor Phase II project in 2005), and that without any monitoring and mitigation measures to minimize potential impacts, up to three bottlenose dolphins from the Western North Atlantic Central Florida Coastal stock may be taken, by Level B harassment, incidental to each blasting event.
Assuming that delays will be spread equally across the action area and using the calculation of 29 delays and that three bottlenose dolphins would be inside the danger zone, 14 of the delayed blasting events would take place in Biscayne Bay since it compromises 48% of the action area. Three bottlenose dolphins times 14 detonations is equal to 42 bottlenose dolphins potentially exposed to underwater sound and pressure over a one year period for an IHA incidental to the blasting activities at the Port of Miami.
Without the implementation of the monitoring and mitigation measures, the ACOE has calculated up to 87 bottlenose dolphins (45 from the Biscayne Bay stock, 42 of the Western North Atlantic Central Florida stock) may be potentially taken, by Level B harassment, incidental to the blasting operations over the course of the one year IHA. Due to the protective measures of confined blasts, the implementation of the monitoring and mitigation measures (
The ACOE will coordinate monitoring with the appropriate Federal and state resource agencies, including NMFS Office of Protected Resources and NMFS SERO Protected Resources Division, and will provide copies of any monitoring reports prepared by the contractors.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS evaluated factors such as:
(1) The number of anticipated injuries, serious injuries, or mortalities;
(2) The number, nature, and intensity, and duration of Level B harassment (all relatively limited);
(3) The context in which the takes occur (
(4) The status of stock or species of marine mammals (
(5) Impacts on habitat affecting rates of recruitment or survival; and
(6) The effectiveness of monitoring and mitigation measures (
Tables 1, 4, and 5 in this document discloses the habitat, regional abundance, conservation status, density, and the number of individuals potentially exposed to sounds and pressure levels considered the threshold for Level B harassment. There are no known important reproductive or feeding areas in the action area.
For reasons stated previously in this document, and in the notice of the proposed IHA (76 FR 71517), the specified activities associated with the ACOE's blasting operations are not likely to cause PTS, or other non-auditory injury, serious injury, or death to affected marine mammals. As a result, no take by injury, serious injury, or death is anticipated or authorized, and the potential for temporary or permanent hearing impairment is very low and will be minimized through the incorporation of the monitoring and mitigation measures.
No injuries or mortalities are anticipated to occur as a result of the ACOE's blasting operations, and none are to be authorized by NMFS. Approximately 22 Atlantic bottlenose dolphins (12 from the Biscayne Bay stock, 10 from the Western North Atlantic Central Florida Coastal stock) are anticipated to incur short-term, minor, hearing impairment (TTS) and associated behavioral disruption due to the instantaneous duration of the blasting events. While some other species of marine mammals may occur in the project area, only Atlantic bottlenose dolphins are anticipated to be potentially impacted by the ACOE's blasting operations.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Atlantic bottlenose dolphins are the only species of marine mammals under NMFS jurisdiction that are likely to occur in the action area, they are not listed as threatened or endangered under the ESA, however both stocks are listed as depleted and considered strategic under the MMPA. To protect these marine mammals (and other protected species in the action area), the ACOE must delay operations if animals enter designated zones. Due to the nature, degree, and context of the Level B harassment anticipated and described in this notice (see Potential Effects on Marine Mammals section above), the activity is not expected to impact rates of recruitment or survival for any affected species or stock. Also, the confined blasting activities are very short in duration and there are no known important areas in the ACOE's action area.
As mentioned previously, NMFS estimates that one species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are estimated to be small (
NMFS has determined, provided that the aforementioned monitoring and mitigation measures are implemented, that the impact of conducting the blasting activities in the Port of Miami from June, 2012 through May, 2012, may result, at worst in a temporary modification in behavior and/or low level physiological effects (Level B harassment) of small numbers of Atlantic bottlenose dolphins.
While behavioral modifications, including temporarily vacating the area immediately after blasting operations, may be made by these species to avoid the resultant underwater acoustic disturbance, the availability of alternate areas within these area and the instantaneous and sporadic duration of the blasting activities, have led NMFS to determine that this action will have a negligible impact on the specified geographic region.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS has determined that the ACOE`s planned blasting activities will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the blasting activities will have a negligible impact on the affected species or stocks of marine mammals; and the impacts to affected species or stocks of marine mammals have been mitigated to the lowest level practicable.
Section 101(a)(5)(D) also requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There is no subsistence hunting for marine mammals in the action area (waters off of the coast of southeast Florida) that implicates MMPA section 101(a)(5)(D).
Under section 7 of the ESA, the ACOE requested formal consultation with the NMFS SERO, on the project to improve the Port of Miami on September 5, 2002, and reinitiated consultation on January 6, 2011. NMFS determined that the action is likely to adversely affect one ESA-listed species and prepared a Biological Opinion (BiOp) issued on September 8, 2011, that analyzes the project's effects on staghorn coral (
The ACOE has prepared a “Final General Reevaluation Report and Environmental Impact Statement on the Navigation Study for Miami Harbor, Miami-Dade County, Florida,” and a “Record of Decision on the Navigation Study for Miami Harbor, Miami-Dade County, Florida” for the project was signed on May 22, 2006; however, this document does not analyze NMFS' action, the issuance of the IHA for the ACOE's activity. NMFS, after independently reviewing and evaluating the document for sufficiency and compliance with the Council of Environmental Quality (CEQ) regulations and NOAA Administrative Order (NAO) 216-6 § 5.09(d), has conducted a separate National Environmental Policy Act (NEPA) analysis and prepared a “Environmental Assessment for Issuance of an Incidental Harassment Authorization for U.S. Army Corps of Engineers Confined Blasting Operations During the Port of Miami Construction Project in Miami, Florida,” which analyzes the project's purpose and need, alternatives, affected environment, and environmental effects for the action prior to making a determination on the issuance of the IHA. Based on the analysis in the EA and the underlying information in the record, including the application, proposed IHA, public comments, and formal ESA section 7 consultation, NMFS has prepared and issued a Finding of No Significant Impact determining that preparation of an
NMFS has issued an IHA to the ACOE for conducting blasting operations at the Port of Miami, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing a Federal Implementation Plan (FIP) to address the requirement for best available retrofit technology (BART) for taconite plants in Minnesota and Michigan. BART is a requirement of EPA's regional haze rule which has not been satisfied by Minnesota or Michigan for its subject taconite plants. EPA developed this proposal in response to an inadequate BART determination by Michigan for its one subject taconite source. On June 12, 2012, EPA approved revisions to the Minnesota State Implementation Plan (SIP) addressing regional haze but also, on that date, announced that in response to comments it was deferring action on emission limitations that Minnesota intended to represent BART for its taconite facilities. EPA is proposing to determine that the FIP satisfies requirements of the Clean Air Act (CAA or “the Act”) that require states, or EPA in promulgating a FIP, to establish BART for applicable sources.
Comments must be received on or before September 28, 2012.
Submit your comments, identified by Docket ID Nos. EPA-R05-OAR-2010-0954 and EPA-R05-OAR-2010-0037, by one of the following methods:
1.
2.
3.
4.
5.
Steven Rosenthal, Environmental Engineer, Attainment Planning & Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6052,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
EPA is proposing a FIP that establishes BART emission limitations for the taconite plants in Minnesota and Michigan that are subject to the Regional Haze Rule.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particulates (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999. (64 FR 35714, July 1, 1999), codified at 40 CFR part 51, subpart P. The Regional Haze Rule revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in this section of this preamble. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands.
Few states submitted a Regional Haze SIP prior to the December 17, 2007 deadline, and on January 15, 2009, EPA found that 37 states, including Michigan and Minnesota, had failed to submit SIPs addressing the regional haze requirements. (74 FR 2392, January 15, 2009). Once EPA has found that a state has failed to make a required submission, EPA is required to promulgate a FIP within two years unless the state submits a SIP and the Agency approves it within the two year period. CAA § 110(c)(1).
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states, or the EPA when implementing a FIP, need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
The following is a summary of the requirements of the Regional Haze Rule.
Regional haze FIPs must assure Reasonable Progress towards the national goal of achieving natural
Under section 110(c) of the Act, whenever we find that a State has failed to make a required submission we are required to promulgate a FIP. Specifically, section 110(c) provides:
(1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—
(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under [section 110(k)(1)(A)], or
(B) disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan. Section 302(y) defines the term “Federal implementation plan” in pertinent part, as:
[A] plan (or portion thereof) promulgated by the Administrator to fill all or a portion of a gap or otherwise correct all or a portion of an inadequacy in a State implementation plan, and which includes enforceable emission limitations or other control measures, means or techniques (including economic incentives, such as marketable permits or auctions or emissions allowances)* * *.
Thus, because the Michigan and Minnesota failed to adequately establish BART limits for its subject taconite ore processing facilities we are required to promulgate a FIP.
Section 169A of the CAA directs states, or EPA if implementing a FIP, to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires EPA to implement a FIP to contain such measures as may be necessary to make Reasonable Progress toward the natural visibility goal, including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
The process of establishing BART emission limitations can be logically broken down into three steps: First, EPA identifies those sources which meet the definition of “BART-eligible sources” set forth in 40 CFR 51.301;
States, or EPA if implementing a FIP, must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
A regional haze FIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once EPA has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of the final FIP. CAA section 169(g)(4) and 40 CFR 51.308(e)(1)(iv). In addition to what is required by the Regional Haze Rule, general SIP, or FIP, requirements mandate that the SIP, or FIP, must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.
EPA agrees with Michigan and Minnesota with respect to the taconite facilities that the States determined to be subject to BART. These determinations are included in Minnesota's December 2009 Regional Haze Plan and Michigan's November 2010 Regional Haze Plan. EPA also agrees with the States' determination that BART for direct PM is satisfied by the taconite maximum achievable control technology (MACT) rule. See, National Emission Standards for Hazardous Air Pollutants: Taconite Iron Ore Processing, 40 CFR part 63, subpart RRRRR. The primary sources that have been specifically identified as being subject to BART and requiring an analysis to establish BART are the taconite pelletizing, or indurating, furnaces identified in Table V-A.1. While they mean the same thing, we have chosen to refer to these furnaces as indurating furnaces or pelletizing furnaces in a manner consistent with how they are referred to by the States.
The U.S. taconite iron ore industry uses two types of pelletizing machines or processes: Straight-grate and grate-kiln. A significant difference is that straight-grate kilns do not burn coal and they therefore have a much lower potential for emitting SO
In the straight-grate kiln, a continuous bed of agglomerated green pellets is carried through different temperature zones with upward draft or downward draft blown through the pellets on the metal grate. Pellet residence time inside the machine is about 40 minutes. Fuel combustion chambers supply hot flue gas to a zone in the middle portion of the machine (combustion zone). (In order to make fully fluxed pellets, auxiliary burners need to be added to the preheating zone.) Fired pellets are cooled on the remaining portion of the machine. To protect the metal grate and other parts of the machine, about 20 percent of the cooled, fired pellets are used to make a hearth layer at the bottom and two sides of the pellet bed.
For the straight-grate kiln, used process gas consists of exhaust gas from the updraft drying zone and exhaust gas closer to the firing zone. The former can be called “hood exhaust” and the latter “windbox exhaust.” For many straight-grate kilns, both hood exhaust and windbox exhaust are directed to one common header. The common exhaust header has one “hot side” inlet to receive windbox exhaust and one “cold side” inlet to receive hood exhaust. From the common exhaust header, the exhaust gas is vented through four parallel stacks, which are outfitted with air pollution control equipment. For some older machines, two separate common headers are used to vent hood exhaust and windbox exhaust. The hood exhaust header vents through three stacks, and the wind exhaust (often referred to as “waste gas”) header vents through two stacks.
Gases are passed numerous times through the pellet bed in order to heat and cool the pellets as they pass along a large grate. “Windbox exhaust” gases are derived from the down draft and preheat zones, but are passed through multiclone dust collectors before entering the wet scrubber/exhaust system. “Hood exhaust” gases from the updraft drying zone originate from the second cooling zone and pass directly into the wet scrubber/exhaust system. Windbox and hood exhaust gases partially mix in a common header before being vented to the atmosphere through a series of four stacks.
The grate-kiln system actually consists of a traveling grate, a rotary kiln, and an annular cooler. Pellet residence time inside the system is about 55 minutes (less than 10 minutes in the grate, about 20 minutes in the kiln, and about 30 minutes in the cooler). The grate-kiln system does not need a hearth layer for the grate, which handles only drying and preheating. The rotary kiln does not need a hearth layer, either, because it is lined with refractory material. One waste gas stack, or two side-by-side waste gas stacks, is used for the grate-kiln system.
Combustion gases for heating the pellets are directed up a large rotating kiln and then down through the pellet bed in the preheat zone. The gases are then used for initial heating and drying of the green pellet feed. Gases used for cooling the hot pellets are also used to dry and heat the pellets. Depending on the operation, the waste gases are passed through one or more scrubbers and vented through one or more separate stacks.
It is very common to use intermediate cyclones to clean the gas stream in the straight grate and grate-kiln pelletizers, as it is ducted to various locations in the grate. The cyclones protect the blades of gas movers (fans) and recover good materials (particles of high iron content). Inclined plates are also used along with periodic water wash to remove “solid spills” under the grate to recover the iron units. These measures also help reduce dust loading near the waste gas stack, even though they are not considered air pollution control equipment.
EPA proposes to find that BART for NO
In a July 2, 2012, conversation with U.S. Steel and COEN, EPA discussed the potential for any negative issues associated with the use of Minntac's low NO
The feasibility of low NO
EPA proposes to determine that BART for SO
For Tilden Line 1 and United Taconite's Lines 1 and 2, EPA is proposing to determine that a dry flue-gas desulfurization (FGD) system (for United Taconite's Lines 1 and 2), and either a wet or dry FGD system at Tilden, with an emission rate of 5 parts per million by volume (ppmv) of SO
Also, there is no indication that the useful life of any of these facilities is less than 20 years.
BART analyses conducted for each of the subject facilities are presented below. EPA will carefully consider any comments that disagree with any of its facts or conclusions. It should be noted, however, that more weight will be provided to fact-based comments such as test results or vendor quotes and less to unsubstantiated engineering estimates or opinions.
Please note that in the following analyses, unless otherwise specified, information related to the technical and economic feasibility of various controls was provided in Minnesota's December 30, 2009 Regional Haze SIP submission and reflects information provided in the company specific BART analyses. The same is also true for Michigan and Tilden.
U.S. Steel Minnesota Ore Operations (Minntac) operates five grate-kiln indurating furnaces which are identified in table V-B.1 below.
The following NO
• External Flue Gas Recirculation,
• Low NO
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Ported Kilns,
• Alternate Fuels, and
• Selective Catalytic Reduction (SCR).
Minntac eliminated External Flue Gas Recirculation and Induced Flue Gas Recirculation Burners from consideration since they were technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. Minntac eliminated Energy Efficiency Projects due to the difficulty of assigning a general potential emission reduction for this category. Minntac noted in their analysis that the facility has already implemented several energy efficiency projects and that it will continue to evaluate and implement
• Low NO
• Low NO
• Ported kilns (Lines 3, 4, and 5—kilns on lines 6 and 7 are already ported).
The following tables illustrate the assumed control efficiencies and the projected NO
Minntac's estimates of the annualized pollution control cost of operating the various control technologies are shown in the following table.
See Section V.C.
EPA is proposing a limit of 1.20 lbs/MMBtu on a 30-day rolling average for all lines to be achieved as follows: 1 year after the effective date of this rule for line 6, 2 years after the effective date for Line 7, 3 years after the effective date for Line 4, 4 years after the effective date for Line 5 and 4 years, and 11 months after the effective date for Line 3.
Lines 3, 4, and 5 can burn natural gas, wood and fuel oil, but natural gas and wood are used most frequently. Since these fuels are low in sulfur, the primary source of sulfur in these furnaces is the iron ore used to form the pellets. Additional sulfur may be present in the additives used in the pellets. In addition to natural gas, wood, and fuel oil, coal is used in Lines 6 and 7.
The lines are controlled by wet scrubbers designed to remove PM. Since collateral SO
Minntac identified the following SO
• Wet Walled Electrostatic Precipitator (WWESP),
• Wet Scrubbing (High and Low Efficiency),
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption,
• Energy Efficiency Projects,
• Alternate Fuels, and
• Coal Processing.
Minntac eliminated Dry Sorbent Injection, Spray Dryer Absorption, Alternative Fuels, and Coal Drying from consideration due to technical infeasibility. With Dry Sorbent Injection and Spray Dryer Absorption, the high moisture content of the exhaust would lead to saturation of the baghouse filter cake and plugging of the filters and the dust collection system. To achieve a reduction of SO
In addition, Minntac has already implemented Energy Efficiency Projects. The company indicated that the potential fuel reductions and the
Minntac evaluated the possibility of improving the SO
Minntac estimated the control efficiency of WWESPs to be approximately 80 percent. A secondary wet scrubber was estimated to control roughly 60 percent of the SO
Minntac estimated the annualized pollution control cost of installing and operating WWESPs on Lines 3, 4, and 5 to be between $20,000 and $24,000 per ton of SO
There are no energy or non-air quality impacts because, as discussed above and in the Step 6 discussion, no additional controls were determined to be required.
Additional SO
Although we do not agree that the Minnesota Pollution Control Agency (MPCA) and Minntac have adequately documented the infeasibility of all of the SO
Minntac also operates four heating boilers that are subject to a full BART analysis. The facility's two Step I Heating Boilers (#1 and #2) are each rated at 104 MMBtu/hr and the two Step III Heating Boilers (#4 and #5) are rated at 153 MMBtu/hr. Each boiler is capable of burning natural gas and fuel oil.
The following NO
• External Flue Gas Recirculation,
• Low-NO
• LNB with Overfire Air (LNB/OFA),
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Alternate Fuels,
• Low Temperature Oxidation,
• Selective Catalytic Reduction,
• Regenerative SCR, and
• Selective Non-Catalytic Reduction.
Minntac eliminated External Flue Gas Recirculation from consideration since it was technically infeasible for the boilers based on Minntac staff judgment that the existing fireboxes for the boilers would be unable to accommodate longer flame length to avoid flame impingement. Minntac eliminated energy efficiency projects due to the difficulty of assigning a general potential emission reduction for this category, but stated that Minntac will continue to evaluate and implement energy efficiency projects. Minntac eliminated alternative fuels because the
The following table illustrates the assumed control efficiencies and the projected NO
The NO
Additional NO
Given that the control options result in modest reductions in NO
Northshore operates two straight-grate indurating furnaces which are identified in Table V-B.7 below.
The following NO
• External Flue Gas Recirculation,
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Ported Kilns,
• Alternate Fuels, and
• Selective Catalytic Reduction.
Northshore eliminated External Flue Gas Recirculation and Induced Flue Gas Recirculation Burners from consideration since they were technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. Northshore eliminated Energy Efficiency Projects due to the difficulty of assigning a general potential emission reduction for this category. The company has already implemented several energy efficiency projects and will continue to evaluate and implement energy efficiency projects. Northshore's use of straight grate indurating furnaces makes the use of Ported Kilns infeasible, since they can be used only at grate-kiln furnaces. Northshore eliminated Alternative Fuels because the environmental and economic benefits of such a change are uncertain and Northshore believes that this option is not mandated by EPA. In addition, Northshore's furnace is currently incapable of handling solid fuels. Also, U.S. Steel documented the infeasibility of SCR controls. (see section V.B.1.a., above).
The following table illustrates the NO
See section V.C.
EPA is proposing a limit of 1.2 lbs/MMBtu on a 30-day rolling average for all lines to be achieved as follows: 1 year and 6 months after the effective date for Line 11 and 2 years and 6 months after the effective date for Line 12.
Although the indurating furnaces can burn both natural gas and fuel oil, natural gas is the primary fuel. Since natural gas is low in sulfur, the primary source of SO
Both lines are controlled by wet-walled electrostatic precipitators using caustic reagent.
Northshore identified the following SO
• Wet-Walled Electrostatic Precipitator,
• Wet Scrubbing (High and Low Efficiency),
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption,
• Energy Efficiency Projects,
• Alternate Fuels, and
• Coal Processing.
Northshore eliminated Dry Sorbent Injection, Spray Dryer Absorption, Alternative Fuels, and Coal Drying from consideration due to technical infeasibility. With Dry Sorbent Injection and Spray Dryer Absorption, the high moisture content of the exhaust would lead to saturation of the baghouse filter cake and plugging of the filters and the dust collection system. Alternative Fuels were eliminated because Northshore is prohibited from burning solid fuels. Coal Drying is technically infeasible because Northshore does not burn coal.
Northshore indicated that the potential fuel reductions and the commensurate emission reductions for future Energy Efficiency Projects cannot accurately be predicted without specific details. Since no particular project has been envisioned, the company did not evaluate this option any further.
Northshore estimated the control efficiency of a secondary WWESP to be approximately 80 percent. A secondary wet scrubber was estimated to control roughly 60 percent of the SO
Northshore estimated the annualized pollution control cost of installing and operating secondary WWESPs ranged from roughly $180,000 to $540,000 per ton of SO
Because the cost of additional SO
Additional SO
Although we do not agree that MPCA and Northshore have adequately documented the infeasibility of all of the SO
Northshore also operates two process boilers that are subject to BART. Both process boilers were installed in 1965 and are rated at 79 MMBtu/hr. The boilers are capable of burning fuel oil and natural gas.
The following NO
• External Flue Gas Recirculation,
• Low-NO
• Overfire Air,
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Alternate Fuels,
• Non-Selective Catalytic Reduction,
• Selective Catalytic Reduction,
• Regenerative SCR, and
• Selective Non-Catalytic Reduction.
Northshore found External Flue Gas Recirculation to be technically infeasible and eliminated it from further consideration because Northshore's process boilers lack the capability needed to controlled combustion conditions at the boiler tip. Overfire air was eliminated due to the small size of Northshore's process boilers and the number of burners. Northshore eliminated energy efficiency projects due to the difficulty of assigning a general potential emission reduction for this category. However, it has already implemented energy efficiency projects and it will continue to evaluate and implement energy efficiency projects. Northshore also rejected alternate fuels, as the process boilers burn distillate fuel oil and natural gas only. As those fuels have low nitrogen content, even a fuel alternative with no nitrogen content would provide little benefit. Northshore also believes that this option is not mandated by EPA and furthermore, Northshore's boilers are incapable of handling solid fuels.
Northshore identified low-NO
The following table illustrates the NO
The NO
See section V.C.
Low NO
United Taconite operates two grate-kilns which are identified in Table V-B.13 below.
United Taconite identified the following NO
• External Flue Gas Recirculation,
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Ported Kilns,
• Alternate Fuels, and
• Selective Catalytic Reduction.
United Taconite eliminated External Flue Gas Recirculation and Induced Flue Gas Recirculation Burners from consideration since they were technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. United Taconite eliminated Energy Efficiency Projects due to the difficulty of assigning a general potential emission reduction for this category. The company has already implemented several energy efficiency projects and it will continue to evaluate and implement energy efficiency projects. United Taconite eliminated Alternative Fuels because the environmental and economic benefits of such a change are uncertain and United Taconite believes that this option is not mandated by EPA. Also, U.S. Steel documented the infeasibility of SCR controls. (see section V.B.1.a., above).
Table V-B.14 illustrates the NO
See section V.C.
A limit of 1.2 lbs/MMBtu on a 30-day rolling average for all lines to be achieved as follows: 1 year and 6 months after the effective date for Line 2 and 2 years and 6 months after the effective date for Line 1.
In its BART analysis, United Taconite identified the following SO
• Wet scrubbing (high efficiency),
• Wet scrubbing (low efficiency),
• Wet walled electrostatic precipitator (WWESP),
• Dry sorbent injection,
• Spray dryer absorption,
• Alternative Fuels, and
• Energy efficiency projects.
United Taconite eliminated dry sorbent injection and spray dryer absorption as technically infeasible technologies. United Taconite identified the use of alternative fuels and energy efficiency projects as technically feasible, but did not evaluate the costs associated with these options. United Taconite justified its failure to evaluate the costs associated with the use of alternative fuels and with energy efficiency projects stating that a BART analysis does not require analysis of such options. The company noted EPA's intent “for facilities to consider alternate fuels as an option, not to direct fuel choice” as its rationale for failing to conduct the cost analyses.
EPA disagrees with United Taconite's assessment of the feasibility of Flue-gas desulfurization, which will be discussed more fully elsewhere.
Table V-B.16 above identified alternatives for controlling SO
EPA has determined that dry FGD scrubbers are feasible for United Taconite's two indurating furnaces.
See section V.C.
EPA is proposing a limit of 5 ppmv or a 95 percent reduction requirement, on a 30-day rolling average, to be achieved within 2 years after the effective date of this rule for Line 2 and 4 years after the effective date of this rule for Line 1.
ArcelorMittal Minorca Mine Inc. operates one straight grate indurating furnace which is identified in Table V-B.18 below.
ArcelorMittal identified the following NO
• External Flue Gas Recirculation,
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Ported Kilns, Alternate Fuels, and
• Selective Catalytic Reduction.
ArcelorMittal eliminated External Flue Gas Recirculation and Induced Flue Gas Recirculation Burners from consideration since they were technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. ArcelorMittal eliminated Energy Efficiency Projects due to the difficulty of assigning a general potential emission reduction for this category. ArcelorMittal noted in its analysis that
Table V-B.19 illustrates the NO
The annualized pollution control cost of installing and operating low NO
See section V.C.
EPA is proposing a limit of 1.2 lbs/MMBtu on a 30-day rolling average to be achieved within 1 year and 6 months after the effective date of this rule for its indurating furnace.
Although the indurating furnaces can burn both natural gas and fuel oil, natural gas is the primary fuel. Since natural gas is low in sulfur, the primary source of sulfur at this furnace is the iron ore used to form the pellets. Additional sulfur may be present in the additives used in the pellets.
Furnace emissions are controlled by four wet scrubbers. The wet scrubbers are designed to remove PM and would be considered high efficiency PM wet scrubbers. Since collateral SO
ArcelorMittal identified the following SO
• Wet Walled Electrostatic Precipitator (WWESP),
• Wet Scrubbing (High and Low Efficiency),
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption (SDA),
• Energy Efficiency Projects, and
• Alternate Fuels.
ArcelorMittal eliminated Dry Sorbent Injection, Spray Dryer Absorption, Alternative Fuels, and Coal Drying from consideration because they were technically infeasible. With Dry Sorbent Injection and Spray Dryer Absorption, the high moisture content of the exhaust would lead to saturation of the baghouse filter cake and plugging of the filters and the dust collection system. Alternative Fuels were eliminated because ArcelorMittal is prohibited from burning solids fuels and natural gas is a low-sulfur fuel. ArcelorMittal indicated that the potential fuel reductions and the commensurate emission reductions for future Energy Efficiency Projects cannot accurately be predicted without specific details; since no particular project has been envisioned, the company did not evaluate this option any further.
ArcelorMittal evaluated the possibility of improving the SO
ArcelorMittal estimated the control efficiency of WWESPs to be approximately 80 percent. A secondary wet scrubber was estimated to control roughly 60 percent of the SO
ArcelorMittal estimated the annualized pollution control cost of installing and operating WWESPs to be about $116,000 per ton of SO
Because the cost of additional SO
Additional SO
Although we do not agree that MPCA and ArcelorMittal have adequately documented the infeasibility of all of the SO
Hibbing operates three straight grate indurating furnaces which are identified in Table V-B.23 below.
Hibbing identified the following NO
• External Flue Gas Recirculation,
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Ported Kilns,
• Alternate Fuels, and
• Selective Catalytic Reduction with Reheat.
Hibbing eliminated External Flue Gas Recirculation and Induced Flue Gas Recirculation Burners from consideration since they were technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. Hibbing eliminated Energy Efficiency Projects due to the difficulty of assigning a general potential emission reduction for this category. Hibbing noted in their Analysis that the facility has already implemented several energy efficiency projects and that it will continue to evaluate and implement energy efficiency projects. Ported Kilns were eliminated by Hibbing because they are applicable only to grate kiln furnaces not to the straight grate indurating furnaces that Hibbing employs. Hibbing eliminated Alternative Fuels because the environmental and economic benefits of such a change are uncertain and Hibbing believes that this option is not mandated by U.S. EPA. Also, Hibbing's permit currently limits its fuels to natural gas, fuel oil, and used oil. Also, U.S. Steel documented the infeasibility of SCR controls. (see section V.B.1.a., above).
Table V-B.24 illustrates the NO
The annualized pollution control cost of installing and operating low NO
See section V.C.
EPA is proposing a limit of 1.2 lbs/MMBtu on a 30-day rolling average for all lines to be achieved as follows: 1 year and 6 months after the effective date for Line 1, 2 years and 6 months after the effective date for Line 3 and 3 years and 6 months for Line 2.
Hibbing operates three straight grate indurating furnaces which are identified in table V-B.26 below.
Although the indurating furnaces can burn both natural gas and fuel oil, natural gas is the primary fuel. Since natural gas is low in sulfur, the primary source of sulfur at these furnaces is the iron ore used to form the pellets. Additional sulfur may be present in the additives used in the pellets.
Each line is controlled by four venture-rod scrubbers. The wet scrubbers are designed to remove PM and would be considered high efficiency PM wet scrubbers. Since collateral SO
Hibbing identified the following SO
• Wet Walled Electrostatic Precipitator (WWESP),
• Wet Scrubbing (High and Low Efficiency),
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption,
• Energy Efficiency Projects, Alternate Fuels, and
• Coal Processing.
Hibbing eliminated Dry Sorbent Injection, Spray Dryer Absorption, Alternative Fuels, and Coal Drying from consideration due to technical infeasibility. With Dry Sorbent Injection and Spray Dryer Absorption, the high moisture content of the exhaust would lead to saturation of the baghouse filter cake and plugging of the filters and the dust collection system. Alternative Fuels were eliminated because Hibbing is prohibited from burning solids fuels. Coal Drying is technically infeasible because Hibbing does not burn coal.
In addition, Hibbing has already implemented Energy Efficiency Projects. The company indicated that the potential fuel reductions and the commensurate emission reductions for future Energy Efficiency Projects cannot accurately be predicted without specific details; since no particular project has been envisioned, the company did not evaluate this option any further.
Hibbing estimated the control efficiency of WWESPs to be approximately 80 percent. A secondary wet scrubber was estimated to control roughly 60 percent of the SO
Hibbing estimated the annualized pollution control cost of installing and operating WWESPs to be about $37,000 per ton of SO
There are no impacts because no additional controls are being proposed, as discussed in the Step 4 and Step 6 discussions.
There are no visibility impacts because no additional controls are being proposed, as discussed in the Step 4 and Step 6 discussions.
Although we do not agree that MPCA and Hibbing have adequately documented the infeasibility of all of the SO
U.S. Steel Keewatin (Keetac) operates one straight grate indurating furnace which is identified in Table V-B.29 below.
Keetac identified the following NO
• External Flue Gas Recirculation,
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Ported Kilns,
• Alternate Fuels, and
• Selective Catalytic Reduction with Reheat.
Keetac eliminated External Flue Gas Recirculation and Induced Flue Gas Recirculation Burners from consideration since they were technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. The company indicated that the potential fuel reductions and the commensurate emission reductions for future Energy Efficiency Projects cannot accurately be predicted without specific details; since no particular project has been envisioned, the company did not evaluate this option any further. Keetac eliminated Alternative Fuels because the furnace already uses solid fuels that result in lower flame temperature and, thus, lower NO
Table V-B.30 identifies the projected NO
See section V.C.
For NO
Keetac identified the following SO
• Wet Walled Electrostatic Precipitator (WWESP),
• Secondary Wet Scrubber,
• Modifications to Existing Wet Scrubber,
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption,
• Energy Efficiency Projects,
• Alternate Fuels, and
• Coal Processing.
In considering control options for sulfur dioxide, Keetac eliminated Dry Sorbent Injection, Spray Dryer Absorption, Alternative Fuels, and Coal Processing from consideration since they were technically infeasible. With Dry Sorbent Injection and Spray Dryer Absorption, the high moisture content of the exhaust would lead to saturation of the baghouse filter cake and plugging of the filters and the dust collection system. The company indicated that the potential fuel reductions and the commensurate emission reductions for future Energy Efficiency Projects cannot accurately be predicted without specific details; since no particular project has been envisioned, the company did not evaluate this option any further. Alternative Fuels were eliminated due to the uncertainty of alternative fuel costs, the potential of replacing one visibility pollutant for another, and Keetac's belief that BART does not intend to mandate a fuel switch. Coal Processing requires a source of excess or of low pressure stream to remove water from the washed coal. There is no such heat source at Keetac so this option is technically infeasible.
In addition, Keetac has already implemented a number of Energy Efficiency Projects. The potential fuel reductions and the commensurate emission reductions for future Energy Efficiency Projects cannot accurately be predicted without specific details; since no particular project has been envisioned, the company decided not to evaluate this option any further.
Keetac evaluated modifying the existing scrubber to determine whether further SO
EPA disagrees with Keetac's assessment of the feasibility of Flue-gas desulfurization, which will be discussed more fully elsewhere.
Keetac evaluated WWESPs and Secondary Wet Scrubber as the two remaining retrofit technologies it deemed to be available and technically feasible. Keetac estimated the control efficiency of WWESPs to be approximately 80 percent. A secondary wet scrubber was estimated to control roughly 60 percent of the SO
Keetac's estimates of the annualized pollution control cost of installing and operating the WWESP and Secondary Wet Scrubber are shown in the table V-B.33 below.
Visibility impacts were not modeled because additional reductions were not determined to be cost effective.
Keetac's existing recirculating lime scrubber satisfies BART. Therefore, EPA is proposing that the scrubber be subject to a 57 percent SO
The BART-subject emission units include indurating furnace/grate-kiln EUKILN 1, EU PRIMARY CRUSHER, EU COOLER 1, EU DRYER 1, EU BOILER 1, and EU BOILER 2.
The following NO
• External Flue Gas Recirculation,
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Energy Efficiency Projects,
• Ported Kilns,
• Alternate Fuels, and
• Selective Catalytic Reduction.
Tilden eliminated External Flue Gas Recirculation and Induced Flue Gas Recirculation Burners from consideration since they were technically infeasible for the specific application to pellet furnaces due to the high oxygen content of the flue gas. Tilden eliminated Energy Efficiency Projects due to the difficulty of assigning a general potential emission reduction for this category. Ported Kilns were eliminated by Tilden because any reduction in NO
Table V-B.34 illustrates the NO
The annualized pollution control cost of installing and operating low NO
See section V.C.
For Line 1, EPA is proposing a limit of 1.2 lbs/MMBtu on a 30-day rolling average to be achieved within 1 year and 6 months after the effective date of this rule.
Tilden identified the following SO
• Wet Walled Electrostatic Precipitator (WWESP),
• Wet Scrubbing,
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption (SDA),
• Energy Efficiency Projects,
• Alternate Fuels, and
• Coal Processing.
Tilden indicated that the potential fuel reductions and the commensurate emission reductions for future Energy Efficiency Projects cannot accurately be predicted without specific details. Therefore, due to the uncertainty and generalization of this category, energy efficiency projects were not subject to further analysis. Alternative Fuels were eliminated due to the uncertainty of alternative fuel costs, the potential of replacing one visibility pollutant for another, and Tilden's belief that BART does not intend to mandate a fuel switch. Using processed fuels at a taconite plant would require research, test burns, and extended trials to identify potential impacts on plant systems, including the furnaces, material handling, and emission control systems. Therefore, processed fuels are not considered commercially available and were not subject to further analysis by Tilden.
Tilden evaluated a WWESP and wet scrubber after its existing ESP, spray dry absorption, and dry sorbent injection as the remaining retrofit technologies it deemed to be available and technically feasible. Tilden estimated the control efficiency of WWESPs and a wet scrubber to be about 80 percent, dry sorbent injection to be 55 percent and spray dry absorption to be 90 percent. The following table illustrates the SO
EPA has determined the cost-effectiveness of a 90 percent FGD scrubber to be $4500-$5500/ton using EPA's Air Pollution Control Cost Manual.
See section V.C.
For Line 1, EPA is proposing a limit of 5 ppmv or a 95 percent emission reduction, on a 30-day rolling average, to be achieved within 2 years after the effective date of this rule.
Two natural gas and fuel oil fired process boilers (Process Boiler #1 and Process Boiler #2) require BART analysis. These boilers provide steam required to operate the taconite plant, as needed. The boilers are permitted to burn only natural gas and used oil.
• Wet Walled Electrostatic Precipitator,
• Wet Scrubber,
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption (SDA),
• Energy Efficiency Projects,
• Alternate Fuels, and
• Coal Processing.
Tilden's process boilers cannot burn solid fuel, which eliminates coal processing. Due to the increased price of fuel, Tilden has already implemented energy efficiency projects. Each project carries its own fuel usage reductions and potentially emission reductions. Due to the uncertainty and generalization of this category, this option was eliminated. Similarly, Tilden eliminated alternative fuels because the environmental and economic benefits of such a change are uncertain, the limited fuel options available, and the fact that natural gas and oil are the fuels burned in the boilers.
The following table illustrates the SO
The two process boilers have very modest SO
Visibility impacts were not modeled because additional reductions are not cost-effective.
This BART analysis shows that adding a control device to control SO
• External Flue Gas Recirculation,
• Low-NO
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Low Excess Air,
• Reburning,
• Energy Efficiency Projects,
• Alternate Fuels,
• Non-Selective Catalytic Reduction,
• Selective Catalytic Reduction (SCR),
• Regenerative SCR,
• Selective Non-Catalytic Reduction, and
• Low Temperature Oxidation.
External flue gas recirculation was eliminated as process boilers #1 and #2 do not have the capability of control at the burner tip, which is needed for this control technology. As noted in SO
Regenerative SCR has only been used on wood-fired boilers. This technology has not been applied to liquid or natural gas fired boilers. Regenerative SCR is currently infeasible for the Tilden boilers. Low temperature oxidation is a post-combustion technology that uses an oxidant to oxide pollutants including NO
The following table illustrates the NO
The two process boilers have modest NO
Visibility impacts were not modeled because no additional reductions are required.
Given that the control options are modest reductions in NO
The Line 1 Dryer includes a combustion box in which natural gas and used oil is burned as fuel. The flue gas from the combustion box flows into a rotary dryer that repeatedly tumbles wet taconite ore concentrate through the flue gas stream to reduce the amount of entrained moisture in the taconite ore concentrate. The particulate emissions from the dryer are controlled by cyclones and impingement scrubbers in series. The dryer is only permitted to use natural gas and used oil for fuel. The Line 1 Dryer has low emissions of SO
• Wet Walled Electrostatic Precipitator,
• Wet Scrubber,
• Dry Sorbent Injection (Dry Scrubbing Lime/Limestone Injection),
• Spray Dryer Absorption (SDA),
• Energy Efficiency Projects,
• Alternate Fuels, and
• Coal Processing.
The Line 1 Dryer cannot burn solid fuel, which eliminates coal processing. Tilden has already implemented energy efficiency projects on the dryer. Each project carries its own fuel usage reductions and potentially emission reductions. Due to the uncertainty and generalization of this category, this option was eliminated. Dry sorbent injection uses a fabric filter, “baghouse,” as part of the control system. The Line 1 Dryer exhaust is saturated with moisture. Such moisture would foul the baghouse. The same is true if the baghouse is placed following the wet scrubber into which the dryer currently exhausts. The dry sorbent injection system is thus technically infeasible for the Line 1 Dryer. The SDA system also uses a baghouse to capture the dry solids. The moisture in the dryer exhaust similarly creates problems with the baghouse. Thus, SDA is infeasible for Tilden's Line 1 Dryer. Alternative fuels are infeasible because the environmental and economic benefits of such a change are uncertain, the limited fuel options available, and the fact that natural gas and oil are the fuels used for the dryer.
The following table illustrates the SO
The Line 1 Dryer has SO
Visibility impacts were not modeled because no additional reductions are required.
This BART analysis shows that adding a control device to control SO
• External Flue Gas Recirculation,
• Low-NO
• Low-NO
• Induced Flue Gas Recirculation Burners,
• Low Excess Air,
• Reburning,
• Energy Efficiency Projects,
• Alternate Fuels,
• Non-Selective Catalytic Reduction,
• Selective Catalytic Reduction (SCR),
• Regenerative SCR,
• Selective Non-Catalytic Reduction, and
• Low Temperature Oxidation.
External flue gas recirculation was eliminated as the configuration of the Line 1 Dryer burner does have the capability of control at the burner tip, which is needed for this control technology. As noted in the SO
Regenerative SCR has only been used on wood-fired boilers. This technology has not been applied to liquid or natural gas fired burners. Regenerative SCR is currently infeasible for the Line 1 Dryer. Low temperature oxidation is a post-combustion technology that uses an oxidant to oxide pollutants including NO
The following table illustrates the NO
The Line 1 Dryer has modest NO
Visibility impacts were not modeled because no additional reductions are required.
Given that the control options are modest reductions in NO
There are five factors considered in a case-by-case BART analysis once a source has been determined to be subject to BART. The first four pertain to identifying and evaluating available control technologies based on technical feasibility, emission control levels, control cost effectiveness, and energy and non-air quality environmental impacts. The first four factors have been discussed elsewhere in this proposed rulemaking. The fifth factor covers the visibility improvements resulting from the BART emission controls. The “Final Regional Haze Regulations and Guidelines for Best Available Retrofit Technology Determinations” document discussed in EPA's “Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations” final rule (70 FR 39104) (Regional Haze Rule) addresses application of the fifth factor. Although it is a required element of a BART analysis, there is substantial flexibility allowed in determining how the visibility impacts factor is implemented and how much weight and significance is assigned to this factor.
EPA is relying on visibility improvement modeling conducted previously by the MPCA and documented in MPCA's document “Visibility Improvement Analysis of Controls Implemented Due to BART Determinations on Emission Units
The visibility improvement modeling conducted by MPCA examined the degree of visibility improvement in the Class I areas of Voyageurs National Park (Voyageurs), Boundary Waters Canoe Area Wilderness (Boundary Waters), and Isle Royale National Park (Isle Royale), determined to be impacted by NO
The modeling system used by MPCA for BART visibility analyses is discussed in detail in “Technical Support Document of the Minnesota State Implementation Plan for Regional Haze,” May 2009, and in Appendix 9.5 of MPCA's December 2009 regional haze SIP submittal. The system utilizes:
• Comprehensive Air Quality Model (CAMx) as the photochemical modeling tool,
• The Pennsylvania State University/National Center for Atmospheric Research (PSU/NCAR) Mesoscale Meteorological Model (MM5) as the meteorological model,
• Emissions Modeling System (EMS-2003) as the emissions model. The base period modeling for the MPCA work included emissions from 2002.
The MPCA modeling examined the impact of the BART controls on both the number of days (ΔDays) with a change (increase) in deciview
Only one of the sources examined by MPCA and addressed here included emission changes from furnaces at a taconite facility. This facility, United Taconite, is located in St. Louis County, Minnesota, roughly 60-80 kilometers from the Class I areas in Northern Minnesota, Voyageurs and Boundary Waters, and approximately 120 kilometers from Isle Royale. The MPCA modeling compared the 2002 actual emissions used in Minnesota's regional haze SIP modeling to the emissions assumed based on the state-determined BART emission controls with corresponding modeled emission reductions for NO
The MPCA visibility modeling documentation details visibility due to the implementation of BART controls for all of the sources considered by the State. However, the FIP covered by this proposed rule only addresses BART control of furnaces located at taconite facilities. Therefore, we have given special attention to the visibility modeling results for the one taconite facility addressed in detail in MPCA's BART visibility modeling discussion, United Taconite.
The detailed modeling information for United Taconite, as presented in MPCA's visibility modeling documentation is duplicated below:
As the tables indicate, while there were no NO
The modeled SO
Other sources addressed in MPCA's modeling study would reduce both NO
We have used the State's modeled BART emission reductions and visibility impacts for fine particulates to determine the sensitivity of visibility parameters for the Class I areas to changes in NO
Table V-C.6 presents the modeled emission reductions and derived visibility impact ratios for Minnesota Power-Boswell Energy Center at each of the Class I areas.
Table V-C.7 presents the modeled emission reductions and derived visibility impact ratios for fine particulates for Minnesota Power-Taconite Harbor at each of the Class I areas.
Table V-C.8 presents the modeled emission reductions and derived visibility impact ratios for fine particulates for Northshore Mining-Silver Bay at each of the Class I areas.
The above visibility factor/emission change ratio data show significant variation from source-to-source and between impacted Class I areas. This variation is caused by differences in the relative locations of the sources (relative to the locations of the Class I areas), variations in background sources, variations in transport patterns on high haze factors, and other factors that we cannot assess without detailed modeling of the visibility impacts for the sources as a function of pollutant emission type. The above data, however, can be used to approximate possible visibility
To calculate the visibility impacts for the Minnesota source facilities covered by this FIP proposed rule, we multiplied the total estimated BART NO
From Tables V-C.10 through V-C.15, it can be seen that the BART emission controls determined for the Minnesota taconite facilities have the potential to produce significant improvements in visibility at all three Class I areas.
The State of Michigan has provided some emissions, air quality, and visibility modeling data for Tilden that may be used to provide an estimate of the visibility impact for the implementation of BART emission controls at Tilden. The Michigan SIP submittal for regional haze, dated October 2010, does include BART assessment data for Tilden, and Tilden NO
The visibility modeling for Tilden shows that it contributed 0.674 deciviews, with 41 days exceeding 0.5 deciviews from 2002-2004, at Isle Royale National Park. Over 96 percent of the modeled SO
In conclusion, the available information indicates that control of emissions from taconite plants in Minnesota and Michigan can be expected to yield significant benefits in reducing visibility impairment in the Class I areas in the two states. Extrapolating from modeling results provided by the two states, the impacts of candidate control options range from about 0.5 deciviews to 3.3 deciviews, with between about 10 and about 130 fewer days over three years with impacts above 0.5 deciviews. While these estimates are not based on direct modeling of the scenarios of interest, the scenarios being addressed here are sufficiently similar to the scenarios addressed in state modeling that EPA considers these estimates to provide adequate indication of the benefits of these controls. Each BART determination is a function of consideration of visibility improvements and other factors for the individual unit, but in general EPA's assessment of visibility impacts finds that technically feasible controls that are available at a reasonable cost for taconite plants can be expected to provide a visibility benefit that makes those controls warranted.
To ensure compliance with the proposed BART limits, EPA has proposed testing and monitoring requirements for the taconite plants subject to this rule. The proposed FIP also includes recordkeeping and reporting requirements for these sources.
We are proposing to approve the following NO
NO
SO
NO
SO
NO
SO
NO
SO
NO
SO
NO
SO
NO
SO
This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). As discussed in detail in section C below, the proposed FIP applies to only six sources. It is therefore not a rule of general applicability.
This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-
After considering the economic impacts of this proposed action on small entities, I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. EPA's proposal adds additional controls to certain sources. The Regional Haze FIP that EPA is proposing for purposes of the regional haze program consists of imposing Federal control requirements to meet the BART requirement for NO
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Under Title II of UMRA, EPA has determined that this proposed rule does not contain a federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million by State, local, or Tribal governments or the private sector in any one year. In addition, this proposed rule does not contain a significant federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
This rule 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, because it merely addresses the State not fully meeting its obligation to prohibit emissions from interfering with other states measures to protect visibility established in the CAA. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled
Executive Order 13045:
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22,
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
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.
We have determined that this proposed rule, if finalized, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52, as proposed to be amended at 77 FR 46912, August 6, 2012, is proposed to be amended as follows:
1. The authority citation for part 52 continues to read as follows:
42 U.S.C. 7401
2. Section 52.1183 is amended by adding paragraphs (j), (k), (l), (m), and (n) to read as follows:
* * *
(j) The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by the state on November 5, 2010, does not meet the requirements of 40 CFR 51.308(e) with respect to NO
(k)(1) NO
(2) SO
(3) The owner or operator of the facility must comply with either (3)(i) or (3)(ii) for the Grate Kiln Line 1 (EUKILN1) beginning 2 years from the effective date of this rule. The selection must be identified in the initial notification of compliance required by this rule.
(i) An emission limit of 5 ppmv SO
(ii) A 95.0 percent or greater SO
(l) Testing and Monitoring.
(1) No later than the compliance date of this regulation, the owner or operator shall install, certify, calibrate, maintain and operate a Continuous Emissions Monitoring System (CEMS) for NO
(2) No later than the compliance date of this regulation, the owner or operator shall install, certify, calibrate, maintain and operate one or more CEMS for SO
(3) Except for CEMS breakdowns, out-of-control periods, repairs, maintenance periods, calibration checks, and zero and high-level drift adjustments, all CEMS required by this rule shall be in continuous operation and meet minimum frequency of operation requirements at (l)(3)(i-viii) during all periods of process operation of the indurating furnaces, including periods of process unit startup, shutdown, and malfunction.
(i) Continuous monitoring systems for measuring the pollutant, NO
(ii) Hourly averages shall be computed using at least one data point in each fifteen-minute quadrant of an hour. Notwithstanding this requirement, an hourly average may be computed from at least two data points separated by a minimum of 15 minutes (where the unit operates for more than one quadrant in an hour) if data are unavailable as a result of performance of calibration, quality assurance, preventive maintenance activities, or backups of data from data acquisition and handling system, and recertification events.
(iii) When valid pollutant emission data in pounds per hour or pounds per million BTU are not obtained because of continuous monitoring system breakdowns, repairs, calibration checks, or zero and span adjustments, emission data must be obtained by using other monitoring systems approved by the EPA, and incorporated into the monitoring plan, to provide emission data for a minimum of 18 hours in each 24 hour period and at least 22 out of 30 successive unit operating days.
(iv) Data substitution must not be used for purposes of determining compliance under this regulation.
(v) All CEMS (and emission testing) data shall be reduced and reported in units of the applicable standard.
(vi) A Quality Control Program Plan must be developed and implemented for all CEMS required by this rule. The plan will include, at a minimum, the information described at 40 CFR 63.8(d), including calibration checks, calibration drift adjustments, preventative maintenance, data collection, recording and reporting, accuracy audits/procedures, periodic performance evaluations, and a corrective action program for CEMS problems and excess emission events.
(vii) The owner or operator must develop and implement a written startup, shutdown, and malfunction plan for NO
(viii) Performance evaluation of continuous monitoring systems. When required by a relevant standard the owner or operator of an affected source being monitored with continuous emission monitoring equipment shall conduct a performance evaluation of the CEMS. Such performance evaluation shall be conducted according to the applicable specifications and procedures described in 40 CFR 63.8(e) and incorporated into the Quality Control Program Plan.
(4) No later than the compliance date of this regulation, the owner or operator of EUKILN1 shall conduct initial performance testing for NO
(m) Recordkeeping Requirements
(1)(i) Records must be in a form suitable and readily available for expeditious review, according to § 63.10(b)(1).
(ii) As specified in § 63.10(b)(1), records must be kept for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(iii) Records must be kept on site for at least 2 years after the date of each occurrence, measurement, maintenance, report, or record according to § 63.10(b)(1). Records may be kept offsite for the remaining 3 years.
(2) Records listed in paragraphs (2)(i) through (iv) of this section must be kept for a period of five years.
(i) A copy of each notification and report submitted to comply with this subpart, including all documentation supporting any initial notification or notification of compliance status submitted, according to the requirements in 40 CFR 63.10(b)(2)(xiv).
(ii) The records in 40 CFR 63.6(e)(3)(iii) through (v) related to startup, shutdown, and malfunction.
(iii) Records of performance tests and performance evaluations as required in 40 CFR 63.10(b)(2)(viii).
(iv) Records of all major maintenance conducted on emission units, pollution control equipment, and CEMS.
(3) For each CEMS, the records specified in paragraphs (3)(i) through (vii) of this section must be kept.
(i) Records described in 40 CFR 63.10(b)(2)(vi) through (xi).
(ii) Previous (that is, superceded) versions of the performance evaluation plan as required in § 63.8(d)(3).
(iii) Records of the date and time that each deviation started and stopped, and whether the deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(iv) All CEMS data including the date, place, and time of sampling or measurement, parameters sampled or measured, and results.
(v) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR part 60, appendix B, Performance Specification 2, Procedure 1 or 40 CFR part 75.
(vi) All records required by 40 CFR part 60, appendix F, Procedure 1 or 40 CFR part 75.
(vii) Records of the NO
(n) Reporting Requirements
(1) Unless otherwise stated all requests, reports, submittals, notifications, and other communications to the Regional Administrator required by this section shall be submitted, unless instructed otherwise, to the Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, Region 5 (E-19J), at 77 West Jackson Boulevard, Chicago, Illinois 60604.
(2)(i) If the owner or operator is required to conduct a performance test, a notification of intent to conduct a performance test must be submitted at least 60 calendar days before the performance test is scheduled to begin, as required in 40 CFR 63.7(b)(1).
(ii) If the owner or operator is required to conduct a performance test or other initial compliance demonstration, a notification of compliance status must be submitted according to 40 CFR 63.9(h)(2)(ii). The initial notification of compliance status must be submitted by the dates specified in paragraphs (2)(ii)(A) through (B) of this section.
(A) For each initial compliance demonstration that does not include a performance test, notification of compliance status must be submitted before the close of business on the 30th calendar day following completion of the initial compliance demonstration.
(B) For each initial compliance demonstration that does include a performance test, notification of compliance status, including the performance test results, must be submitted before the close of business on the 60th calendar day following the completion of the performance test according to § 63.10(d)(2).
(3) The recordkeeping requirements for CEMS performance testing are found in 40 CFR 60.7(c) and (d). All emission data shall be reported in the units of the standard.
(4) The recordkeeping requirements for non-continuous performance testing are found in 40 CFR 60.7(b). The owner or operator shall submit a written report of the results from all required non-CEMS performance tests to EPA within
(5) Compliance Reports. Unless the Administrator has approved a different schedule, a semiannual compliance report must be submitted, according to the paragraphs (5)(i) through (iv) of this section.
(i) The first compliance report must cover the beginning period on the compliance date that is specified for the affected source and ended on June 30 or December 31, whichever date comes first after the compliance date that is specified for the affected source.
(ii) The first compliance report must be postmarked or delivered no later than July 31 or January 31, whichever comes first after the first compliance report is due.
(iii) Each subsequent compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(iv) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date comes first after the end of the semiannual reporting period.
(6) Compliance report contents. Each compliance report must include the information in paragraphs (6)(i) through (iii) of this section and, as applicable, in paragraphs (6)(iv) through (viii) of this section.
(i) Company name and address.
(ii) Statement by a responsible official, with the official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report.
(iii) Date of report and beginning and ending dates of the reporting period.
(iv) If the source had a startup, shutdown, or malfunction during the reporting period and the owner or operator took actions consistent with the source's startup, shutdown, and malfunction plan, the compliance report must include the information in § 63.10(d)(5)(i).
(v) If there were no deviations from the continuous NO
(vi) If there were no periods during which a continuous monitoring system was out-of-control as specified in § 63.8(c)(7), then a statement that there were no periods during which a continuous monitoring system was out-of-control during the reporting period must be provided.
(vii) For each deviation from a NO
(A) The date and time that each malfunction started and stopped.
(B) The date and time that each continuous monitoring system was inoperative, except for zero (low-level) and high-level checks.
(C) The date, time, and duration that each continuous monitoring system was out-of-control, including the information in § 63.8(c)(8).
(D) The date and time that each deviation started and stopped, and whether each deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(E) A summary of the total duration of the deviation during the reporting period and the total duration as a percent of the total source operating time during that reporting period.
(F) A breakdown of the total duration of the deviations during the reporting period including those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(G) A summary of the total duration of continuous monitoring system downtime during the reporting period and the total duration of continuous monitoring system downtime as a percent of the total source operating time during the reporting period.
(H) A brief description of the process units.
(I) A brief description of the continuous monitoring system.
(J) The date of the latest continuous monitoring system certification or audit.
(K) A description of any changes in continuous monitoring systems, processes, or controls since the last reporting period.
(7) Immediate startup, shutdown, and malfunction report. If the affected source had a startup, shutdown, or malfunction during the semiannual reporting period that was not consistent with the startup, shutdown, and malfunction plan, an immediate startup, shutdown, and malfunction report must be submitted according to the requirements in § 63.10(d)(5)(ii).
(8) Notification of performance evaluation. (i) The owner or operator shall notify the Administrator in writing of the date of the performance evaluation simultaneously with the notification of the performance test date required under § 63.7(b) or at least 60 days prior to the date the performance evaluation is scheduled to begin if no performance test is required.
(ii)(A) Submission of site-specific performance evaluation test plan. Before conducting a required CEMS performance evaluation, the owner or operator of an affected source shall develop and submit a site-specific performance evaluation test plan to the Administrator for approval upon request. The performance evaluation test plan shall include the evaluation program objectives, an evaluation program summary, the performance evaluation schedule, data quality objectives, and both an internal and external QA program. Data quality objectives are the pre-evaluation expectations of precision, accuracy, and completeness of data.
(B) The internal QA program shall include, at a minimum, the activities planned by routine operators and analysts to provide an assessment of CEMS performance. The external QA program shall include, at a minimum, systems audits that include the opportunity for on-site evaluation by the Administrator of instrument calibration, data validation, sample logging, and documentation of quality control data and field maintenance activities.
(C) The owner or operator of an affected source shall submit the site-specific performance evaluation test plan to the Administrator (if requested) at least 60 days before the performance test or performance evaluation is scheduled to begin, or on a mutually agreed upon date, and review and approval of the performance evaluation test plan by the Administrator will occur with the review and approval of the site-specific test plan (if review of the site-specific test plan is requested).
(D) The Administrator may request additional relevant information after the submittal of a site-specific performance evaluation test plan.
(E) In the event that the Administrator fails to approve or disapprove the site-specific performance evaluation test plan within the time period specified in § 63.7(c)(3), the following conditions shall apply:
(
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(F) Neither the submission of a site-specific performance evaluation test plan for approval, nor the Administrator's approval or disapproval of a plan, nor the Administrator's failure to approve or disapprove a plan in a timely manner shall—
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(iii) Conduct of performance evaluation and performance evaluation dates. The owner or operator of an affected source shall conduct a performance evaluation of a required CEMS during any performance test required under § 63.7 in accordance with the applicable performance specification as specified in the relevant standard. If a performance test is not required, or the requirement for a performance test has been waived under § 63.7(h), the owner or operator of an affected source shall conduct the performance evaluation not later than 180 days after the appropriate compliance date for the affected source, as specified in § 63.7(a), or as otherwise specified in the relevant standard.
(iv) Reporting performance evaluation results. The owner or operator shall furnish the Administrator a copy of a written report of the results of the performance evaluation simultaneously with the results of the performance test required under § 63.7 or within 60 days of completion of the performance evaluation if no test is required, unless otherwise specified in a relevant standard. The Administrator may request that the owner or operator submit the raw data from a performance evaluation in the report of the performance evaluation results.
3. Section 52.1235 is amended by adding paragraphs (a), (b), (c), (d) and (e) to read as follows:
(a) The requirements of section 169A of the Clean Air Act are not met because the regional haze plan submitted by the state on December 30, 2009, and on May 8, 2012, does not meet the requirements of 40 CFR 51.308(e) with respect to NO
(b)(1) NO
(i) United States Steel Corporation, Keetac: An emission limit of 1.2 lb NO
(ii) Hibbing Taconite Company: An emission limit of 1.2 lb NO
(iii) United States Steel Corporation, Minntac: An emission limit of 1.2 lb NO
(iv) United Taconite: An emission limit of 1.2 lb NO
(v) ArcelorMittal Minorca Mine: An emission limit of 1.2 lb NO
(vi) Northshore Mining Company—Silver Bay: An emission limit of 1.2 lb NO
(2) SO
(i) United States Steel Corporation, Keetac: An emission limit of 225 lb SO
(ii) Hibbing Taconite Company: Emission limits of 56.0 lb SO
(iii) United States Steel Corporation, Minntac: The emission limits for the five indurating furnaces are 71.3 lb SO
(iv) United Taconite: An emission limit of 5 ppmv SO
(v) ArcelorMittal Minorca Mine: An emission limit of 23.0 lb SO
(vi) Northshore Mining Company—Silver Bay: An emission limit of 16.3 lb SO
(c) Testing and Monitoring.
(1) No later than the compliance date of this regulation, the owner or operator of the respective facility shall install, certify, calibrate, maintain and operate Continuous Emissions Monitoring Systems (CEMS) for NO
(2) No later than the compliance date of this regulation, the owner or operator shall install, certify, calibrate, maintain and operate one or more CEMS for SO
(3) Except for CEMS breakdowns, out-of-control periods, repairs, maintenance periods, calibration checks, and zero and high-level drift adjustments, all CEMS required by this rule shall be in continuous operation and meet minimum frequency of operation requirements at (c)(3)(i-viii) during all periods of process unit operation, including periods of process unit startup, shutdown, and malfunction.
(i) Continuous monitoring systems for measuring the pollutant, NO
(ii) Hourly averages shall be computed using at least one data point in each fifteen-minute quadrant of an hour. Notwithstanding this requirement, an hourly average may be computed from at least two data points separated by a minimum of 15 minutes (where the unit operates for more than one quadrant in an hour) if data are unavailable as a result of performance of calibration, quality assurance, preventive maintenance activities, or backups of data from data acquisition and handling system, and recertification events.
(iii) When valid pollutant emission data in pounds per hour or pounds per million BTU are not obtained because of continuous monitoring system breakdowns, repairs, calibration checks, or zero and span adjustments, emission data must be obtained by using other monitoring systems approved by the EPA, and incorporated into the monitoring plan, to provide emission data for a minimum of 18 hours in each 24 hour period and at least 22 out of 30 successive unit operating days.
(iv) Data substitution must not be used for purposes of determining compliance under this regulation.
(v) All CEMS (and emission testing) data shall be reduced and reported in units of the applicable standard.
(vi) A Quality Control Program Plan must be developed and implemented for all CEMS required by this rule. The plan will include, at a minimum, the information described at 40 CFR 63.8(d), including calibration checks, calibration drift adjustments, preventative maintenance, data collection, recording and reporting, accuracy audits/
(vii) The owner or operator must develop and implement a written startup, shutdown, and malfunction plan for NO
(viii) Performance evaluation of continuous monitoring systems. When required by a relevant standard the owner or operator of an affected source being monitored with continuous emission monitoring equipment shall conduct a performance evaluation of the CEMS. Such performance evaluation shall be conducted according to the applicable specifications and procedures described in 40 CFR 63.8(e) and incorporated into Quality Control Program Plan.
(4) No later than the compliance date of this regulation, the owner or operator of each unit identified in this rule shall conduct initial performance testing for NO
(5) No later than the compliance date of this regulation, owners or operators utilizing a wet scrubber to control SO
(d) Recordkeeping Requirements.
(1)(i) Records must be in a form suitable and readily available for expeditious review, according to § 63.10(b)(1).
(ii) As specified in § 63.10(b)(1), records must be kept for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(iii) Records must be kept on site for at least 2 years after the date of each occurrence, measurement, maintenance, report, or record according to § 63.10(b)(1). Records may be kept offsite for the remaining 3 years.
(2) Records listed in paragraphs (2)(i) through (iv) of this section must be kept for a period of five years.
(i) A copy of each notification and report submitted to comply with this subpart, including all documentation supporting any initial notification or notification of compliance status submitted, according to the requirements in 40 CFR 63.10(b)(2)(xiv).
(ii) The records in 40 CFR 63.6(e)(3)(iii) through (v) related to startup, shutdown, and malfunction.
(iii) Records of performance tests and performance evaluations as required in 40 CFR 63.10(b)(2)(viii).
(iv) Records of all major maintenance conducted on emission units, pollution control equipment, and CEMS.
(3) For each CEMS, the records specified in paragraphs (3)(i) through (vii) of this section must be kept.
(i) Records described in 40 CFR 63.10(b)(2)(vi) through (xi).
(ii) Previous (that is, superceded) versions of the performance evaluation plan as required in 63.8(d)(3).
(iii) Records of the date and time that each deviation started and stopped, and whether the deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(iv) All CEMS data including the date, place, and time of sampling or measurement, parameters sampled or measured, and results.
(v) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR part 60, appendix B, Performance Specification 2, Procedure 1 or 40 CFR part 75.
(vi) All records required by 40 CFR part 60, appendix F, Procedure 1 or 40 CFR part 75.
(vii) Records of the NO
(e) Reporting Requirements.
(1) Unless otherwise stated all requests, reports, submittals, notifications, and other communications to the Regional Administrator required by this section shall be submitted, unless instructed otherwise, to the Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, Region 5 (E-19J), at 77 West Jackson Boulevard, Chicago, Illinois 60604.
(2)(i) If the owner or operator is required to conduct a performance test, a notification of intent to conduct a performance test must be submitted at least 60 calendar days before the performance test is scheduled to begin, as required in 40 CFR 63.7(b)(1).
(ii) If the owner or operator is required to conduct a performance test or other initial compliance demonstration, a notification of compliance status must be submitted according to 40 CFR 63.9(h)(2)(ii). The initial notification of compliance status must be submitted by the dates specified in paragraphs (2)(ii)(A) through (B) of this section.
(A) For each initial compliance demonstration that does not include a performance test, notification of compliance status must be submitted before the close of business on the 30th calendar day following completion of the initial compliance demonstration.
(B) For each initial compliance demonstration that does include a performance test, notification of compliance status, including the performance test results, must be submitted before the close of business on the 60th calendar day following the completion of the performance test according to § 63.10(d)(2).
(3) The recordkeeping requirements for CEMS performance testing are found in 40 CFR 60.7(c) and (d). All emission data shall be reported in the units of the standard.
(4) The recordkeeping requirements for non-continuous performance testing are found in 40 CFR 60.7(b). The owner or operator shall submit a written report of the results from all required non-CEMS performance tests to EPA within 90 calendar days of the completion of the performance test.
(5) Compliance Reports. Unless the Administrator has approved a different schedule, a semiannual compliance report must be submitted, according to the paragraphs (5)(i) through (iv) of this section.
(i) The first compliance report must cover the beginning period on the compliance date that is specified for the affected source and ended on June 30 or December 31, whichever date comes first after the compliance date that is specified for the affected source.
(ii) The first compliance report must be postmarked or delivered no later than July 31 or January 31, whichever comes
(iii) Each subsequent compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(iv) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date comes first after the end of the semiannual reporting period.
(6) Compliance report contents. Each compliance report must include the information in paragraphs (6)(i) through (iii) of this section and, as applicable, in paragraphs (6)(iv) through (viii) of this section.
(i) Company name and address.
(ii) Statement by a responsible official, with the official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report.
(iii) Date of report and beginning and ending dates of the reporting period.
(iv) If the source had a startup, shutdown, or malfunction during the reporting period and the owner or operator took actions consistent with the source's startup, shutdown, and malfunction plan, the compliance report must include the information in § 63.10(d)(5)(i).
(v) If there were no deviations from the continuous NO
(vi) If there were no periods during which a continuous monitoring system was out-of-control as specified in § 63.8(c)(7), then a statement that there were no periods during which a continuous monitoring system was out-of-control during the reporting period must be provided.
(vii) For each deviation from a NO
(A) The date and time that each malfunction started and stopped.
(B) The date and time that each continuous monitoring system was inoperative, except for zero (low-level) and high-level checks.
(C) The date, time, and duration that each continuous monitoring system was out-of-control, including the information in § 63.8(c)(8).
(D) The date and time that each deviation started and stopped, and whether each deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(E) A summary of the total duration of the deviation during the reporting period and the total duration as a percent of the total source operating time during that reporting period.
(F) A breakdown of the total duration of the deviations during the reporting period including those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(G) A summary of the total duration of continuous monitoring system downtime during the reporting period and the total duration of continuous monitoring system downtime as a percent of the total source operating time during the reporting period.
(H) A brief description of the process units.
(I) A brief description of the continuous monitoring system.
(J) The date of the latest continuous monitoring system certification or audit.
(K) A description of any changes in continuous monitoring systems, processes, or controls since the last reporting period.
(7) Immediate startup, shutdown, and malfunction report. If the affected source had a startup, shutdown, or malfunction during the semiannual reporting period that was not consistent with the startup, shutdown, and malfunction plan, an immediate startup, shutdown, and malfunction report must be submitted according to the requirements in § 63.10(d)(5)(ii).
(8) Notification of performance evaluation. (i) The owner or operator shall notify the Administrator in writing of the date of the performance evaluation simultaneously with the notification of the performance test date required under § 63.7(b) or at least 60 days prior to the date the performance evaluation is scheduled to begin if no performance test is required.
(ii)(A) Submission of site-specific performance evaluation test plan. Before conducting a required CEMS performance evaluation, the owner or operator of an affected source shall develop and submit a site-specific performance evaluation test plan to the Administrator for approval upon request. The performance evaluation test plan shall include the evaluation program objectives, an evaluation program summary, the performance evaluation schedule, data quality objectives, and both an internal and external QA program. Data quality objectives are the pre-evaluation expectations of precision, accuracy, and completeness of data.
(B) The internal QA program shall include, at a minimum, the activities planned by routine operators and analysts to provide an assessment of CEMS performance. The external QA program shall include, at a minimum, systems audits that include the opportunity for on-site evaluation by the Administrator of instrument calibration, data validation, sample logging, and documentation of quality control data and field maintenance activities.
(C) The owner or operator of an affected source shall submit the site-specific performance evaluation test plan to the Administrator (if requested) at least 60 days before the performance test or performance evaluation is scheduled to begin, or on a mutually agreed upon date, and review and approval of the performance evaluation test plan by the Administrator will occur with the review and approval of the site-specific test plan (if review of the site-specific test plan is requested).
(D) The Administrator may request additional relevant information after the submittal of a site-specific performance evaluation test plan.
(E) In the event that the Administrator fails to approve or disapprove the site-specific performance evaluation test plan within the time period specified in § 63.7(c)(3), the following conditions shall apply:
(
(
(F) Neither the submission of a site-specific performance evaluation test plan for approval, nor the Administrator's approval or disapproval of a plan, nor the Administrator's failure to approve or disapprove a plan in a timely manner shall—
(
(
(iii) Conduct of performance evaluation and performance evaluation dates. The owner or operator of an affected source shall conduct a performance evaluation of a required CEMS during any performance test required under § 63.7 in accordance with the applicable performance specification as specified in the relevant standard. If a performance test is not required, or the requirement for a performance test has been waived under § 63.7(h), the owner or operator of an affected source shall conduct the performance evaluation not later than 180 days after the appropriate compliance date for the affected source, as specified in § 63.7(a), or as otherwise specified in the relevant standard.
(iv) Reporting performance evaluation results. The owner or operator shall furnish the Administrator a copy of a written report of the results of the performance evaluation simultaneously with the results of the performance test required under § 63.7 or within 60 days of completion of the performance evaluation if no test is required, unless otherwise specified in a relevant standard. The Administrator may request that the owner or operator submit the raw data from a performance evaluation in the report of the performance evaluation results.