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Final rule.
This rule implements the new Cotton Transition Assistance Program (CTAP) authorized by the Agricultural Act of 2014 (the 2014 Farm Bill). It also includes general provisions needed to implement CTAP, the Agriculture Risk Coverage (ARC), and Price Loss Coverage (PLC) Programs. ARC and PLC will be implemented through a separate rulemaking and will provide benefits for other commodities. CTAP is a temporary program that provides payments to producers on farms for which cotton base acres were in existence as of September 30, 2013, as adjusted. It will operate for only the 2014 crop year and in certain counties for the 2015 crop year, and is intended to be a transition for producers on farms with upland cotton base acres that were in existence as of September 30, 2013, between the previous Direct and Counter-cyclical Payments Program (DCP) and the new Stacked Income Protection Plan (STAX), which is authorized to begin no later than the 2015 crop year.
Brent Orr; telephone: (202) 720-7641. Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at (202) 720-2600 (voice and TDD).
Section 1119 of the 2014 Farm Bill (Pub. L. 113-79) authorizes CTAP for producers on farms “for which cotton base acres were in existence for the 2013 crop year.” CTAP is only authorized for the 2014 crop year, and for the 2015 crop year in counties where STAX is not available. STAX, as specified in section 11017 of the 2014 Farm Bill, is required to become available no later than the 2015 crop year, but is not required to provide coverage for every county in 2015. (USDA's Risk Management Agency is implementing STAX.) CTAP has some similarities to the direct payment aspect of DCP, for upland cotton only. The new ARC and PLC Programs authorized by sections 1116 and 1117 of the 2014 Farm Bill, respectively, which are being implemented through separate rulemaking, provide benefits for the commodities, other than upland cotton, that were previously covered by DCP.
The 2014 Farm Bill specifies that CTAP payments will be based on the farm's upland cotton base acres that were “in existence for the 2013 crop year.” Accordingly, the 2014 CTAP payments will be made available to eligible producers on farms for which cotton base acres were in existence as of September 30, 2013, as adjusted. STAX is scheduled to be available in some counties beginning with the 2015 crop year; producers on a farm located in a county where STAX is available will not be eligible for CTAP for the 2015 crop year. In counties where STAX is not available for the 2015 crop year, producers on farms for which 2013 upland cotton base acres were in existence as of September 30, 2013, as adjusted, will be eligible for 2015 CTAP payments after October 1, 2015. This rule specifies the eligibility requirements for CTAP, which are different for 2014 and 2015 because of the provision involving STAX availability. Similar to DCP, producers do not have to actually grow or harvest upland cotton to be eligible for CTAP. However, producers must have an interest in the upland cotton base acres on the farm and must meet or satisfy other payment eligibility requirements (including average adjusted gross income requirements, conservation compliance provisions, and actively engaged in farming) to be eligible for CTAP.
The regulations for CTAP, ARC, and PLC will be specified in 7 CFR part 1412. Some definitions and requirements for base acres that are needed for all three programs are specified in this rule. For example, as specified in the 2014 Farm Bill, base acres of upland cotton in effect on September 30, 2013, are defined as generic base acres for the purposes of ARC and PLC. As another example, provisions for double cropping and replacement crops are similar to those for DCP, but the definitions are being revised to remove references to DCP and to insert references to CTAP, ARC, and PLC. Additional terms “eligible subsequently planted crop acreage” and “subsequently planted crop acreage” are added as those terms have different applicable meanings under the 2014 Farm Bill. Under section 1114 of the 2014 Farm Bill, subsequently planted crop acreage can be used as payment acres or for attributing generic base acres if the initial crop is any crop other than a covered commodity. These subsequently planted crop acres are termed “eligible subsequently planted crop acreage.” The term “subsequently planted crop acreage” is also added to distinguish it from “eligible subsequently planted crop acreage” by virtue of it following any planted and considered planted (P&CP) covered commodity not in an approved double cropping sequence. To reiterate, “eligible subsequently planted crop acreage” may be used to determine payment acres under ARC or PLC and to attribute generic base acres on a farm; “subsequently planted crop acreage” may be used to facilitate base acre reallocation. Common provisions in 7 CFR 718 that apply to all FSA and CCC programs, including those for base acres and farm reconstitutions, apply to CTAP.
The eligible land for CTAP in 2014 and 2015 is based on the farm's upland cotton base acres that were in existence for the 2013 crop year, as of September 30, 2013, adjusted, including, but not limited to, adjustments for expired, terminated, or released Conservation Reserve Program (CRP) land, and limited by the total number of cropland
Section 1119(c) of the 2014 Farm Bill states that the CTAP payment amount is equal to the number of adjusted base acres of upland cotton divided by the national program yield for upland cotton of 597 pounds per acre times the transition assistance rate for upland cotton times the farm's DCP yield, times a specified percentage payment rate. The 2014 Farm Bill specifies that the transition assistance rate of upland cotton is the June 12, 2013, midpoint estimate for the marketing year average price of upland cotton for the marketing year beginning August 1, 2013, less the December 10, 2013, midpoint estimate for the marketing year average price of upland cotton for the marketing year beginning August 1, 2013, as contained in the applicable World Agricultural Supply and Demand Estimates report published by USDA, multiplied by the national program yield for upland cotton of 597 pounds per acre. Mathematically, the 597 pounds per acre cancels out of the above equation. Accordingly, the transition assistance rate can be restated as simply the difference between the August 1, 2013, and the December 10, 2013, midpoint estimates. FSA has calculated the transition assistance rate to be $0.09 per pound. The payment rates, as specified in the 2014 Farm Bill are: 60 percent for the 2014 crop year and 36.5 percent for the 2015 crop year. Therefore, the payment per base acre of upland cotton for 2014 would be $0.09, times the farm's DCP yield, times 60 percent. If the farm's DCP yield was 500 pounds, that payment would be $27.00 an acre. For 2015 it would be $0.09, times the farm's DCP yield, times 36.5 percent. If the farm's DCP yield was 500 pounds, that payment would be $16.425 an acre.
CTAP payments will be made to eligible producers on or after October 1 of the crop year when upland cotton is or ordinarily would have been harvested. Similar to DCP, payment eligibility is based upon the number of upland cotton base acres, which are not required to be planted to cotton. As discussed earlier, eligibility for CTAP in 2015 is determined in part by the availability of STAX.
ARC and PLC have similar provisions to the former DCP with regard to planting flexibility and reductions for plantings of fruits, vegetables, and wild rice on base acres. The acreage reduction provisions apply to ARC and PLC, but not to CTAP. However, we are specifying them in this rule so that producers are informed of how generic acres and acreage reductions will be used in the payment calculations for ARC and PLC.
Similar to DCP, the planting or harvesting of perennial or non-perennial fruits, vegetables (except mung beans and pulse crops), or wild rice will result in an acre for acre payment reduction for ARC and PLC (but not CTAP), unless an exception applies for double cropped acreage in approved double cropping counties. Under DCP, the reduction was applied beginning with the covered commodity or peanut acres with the lowest direct payment amount per acre until the acreage reduction amount was met. In addition, producers could agree to adjust the DCP acre reduction between covered commodities and peanuts on the farm, but only to the extent that the total acre reduction amount did not change for the farm, and all producers affected by the adjustment agreed to the adjustment in writing. Under CTAP, ARC, and PLC, as specified in the 2014 Farm Bill, peanuts are now a covered commodity, upland cotton is not a covered commodity, and what were upland cotton base acres under the 2008 Farm Bill are now generic base acres that will be counted as acres of covered commodities if planted (or considered planted). Therefore, determining the acres that have the lowest payment amount per acre for all covered commodities for ARC and PLC on the farm is more complicated than under DCP.
This rule specifies that in determining reductions to base acres that are payment acres for ARC and PLC (only payment acres are reduced, not base acres) the acreage of any fruit or vegetable will first be attributed to cropland not having base acres, followed by base acres, before applying any payment acreage reduction that is required by this rule. The reduction will be attributed to each of the covered commodities on the farm having payment acres on a pro rata basis to reflect the ratio of the payment acres of the covered commodity on the farm to the total payment acres of all covered commodities on the farm. The reductions are required by the 2014 Farm Bill; the pro rata procedure for determining the reductions is discretionary and within FSA's authority.
As specified in the 2014 Farm Bill and in 7 CFR part 1400, payment limits and average adjusted gross income (AGI) limits apply to CTAP. CTAP payments in each of the 2014 and 2015 program years are limited to $40,000 per person or legal entity, similar to the $40,000 per person or legal entity limitation that applied to DCP under the 2008 Farm Bill. A person or legal entity is ineligible for payments if the person's or legal entity's AGI for the applicable compliance program year is in excess of $900,000. Similar to how AGI provisions applied to members of legal entities in the 2008 Farm Bill, under the 2014 Farm Bill if a person with an indirect interest in a legal entity has AGI in excess of $900,000, the CTAP payments subject to AGI compliance provisions to the legal entity will be reduced as calculated based on the percent interest of the person in the legal entity receiving the payment. AGI will be calculated based on the average income for the 3 taxable years preceding the most immediately preceding complete taxable year for which benefits are requested. For example, the relevant years used to calculate AGI for 2014 CTAP are the 2010, 2011, and 2012 tax years. For 2015 CTAP the relevant years are the 2011, 2012, and 2013 tax years.
To be eligible for CTAP, each producer is required to be a person or legal entity who is actively engaged in farming and otherwise eligible for payment, as specified in 7 CFR part 1400, and who complies with requirements including, but not limited to, those pertaining to highly erodible land conservation and wetland conservation provisions (commonly referred to as the conservation compliance provisions) specified in 7 CFR part 12.
Appeal regulations specified in 7 CFR parts 11 and 780 apply. FSA program requirements and determinations that are not in response to, or result from, an individual. disputable set of facts in an individual participant's application for assistance are not matters that can be appealed. Crop insurance is not
The procedures to determine shared payments will be similar to those used for DCP. Each eligible producer on a farm will be given the opportunity to apply for CTAP and receive CTAP payments determined to be fair and equitable as agreed to by all the producers on the farm and approved by the FSA county committee. Each producer leasing a farm is required to provide a copy of their written lease to the county committee and, in the absence of a written lease, is required to provide to the county committee a complete written description of the terms and conditions of any oral agreement or lease. An owner's or landlord's signature, as applicable, affirming a zero share on an application for CTAP may be accepted as evidence of a cash lease between the owner or landlord and tenant, as applicable, as determined by CCC. Such signature or signatures, if entered on the application for CTAP to satisfy the requirement of furnishing a written lease, is required to be entered on the application by October 7, 2014 for 2014 CTAP and by July 31, 2015, for 2015 CTAP. When a farm's 2013 base acres of upland cotton are leased in 2014 or 2015 on a share basis, neither the landlord nor the tenant will receive 100 percent of CTAP for the farm. CCC will approve an application for CTAP and approve the division of payment when all the following, as applicable, occur or have been determined to have occurred:
(1) Landlords, tenants, and sharecroppers sign the application and agree to the payment shares shown; and
(2) CCC determines that the interests of tenants and sharecroppers are being protected; and
(3) CCC determines that the payment shares do not circumvent either the provisions of this rule or the provisions of 7 CFR part 1400.
Section 1119 of the 2014 Farm Bill authorizes CTAP, which is not to be paid before October 1 of the calendar year in which the crop of upland cotton is harvested. This means that FSA cannot make 2014 CTAP payments before October 1, 2014. However, signup for payments can occur earlier. FSA is exercising discretion and establishing a signup deadline of October 7, 2014, for 2014 CTAP so as to not delay CTAP payments. We anticipate that most producers who enrolled 2013 cotton base acres in 2013 DCP or the Average Crop Revenue Election (ACRE) Program will likely choose to apply for CTAP. For 2015 CTAP, the signup deadline will be July 31, 2015.
Applications for CTAP are independent of any election and participation in ARC or PLC. It is possible for upland cotton base acres eligible for CTAP to also qualify as eligible generic base acres for ARC and PLC, and (more commonly) for a farm to have some cotton base acres eligible for CTAP and base acres for different commodities eligible for ARC and PLC. A producer needs to separately elect and enroll in ARC or PLC to be eligible for those benefits. The application for CTAP has no bearing on ARC or PLC elections or decision to participate in ARC or PLC. Likewise, persons or legal entities that enroll and elect ARC or PLC and who do not file an application for 2014 or 2015 CTAP in accordance with this rule will not be paid for 2014 or 2015 CTAP, even if those acres were eligible for CTAP.
This rule revises 7 CFR part 1412, which had been the regulations for DCP and ACRE, and will now be the regulations for ARC, PLC, and CTAP.
Many of the provisions that applied to DCP and ACRE will also apply to ARC, PLC, and CTAP, and are therefore included in this rule with the required revisions. These include the provisions for planting flexibility and double cropping, and provisions relating to tenants, sharecroppers, offsets, assignments, acreage, and production reporting.
This rule revises definitions in 7 CFR part 1412 as required to implement ARC, PLC, and CTAP. For example, the definition of “contract period” is revised to specify the contract periods for 2014 through 2018 ARC and PLC. (CTAP uses applications; ARC and PLC use contracts.) A definition for generic base acres is added, as specified in the 2014 Farm Bill. The definition of “replacement crop” is revised to refer to both covered commodities and upland cotton, since cotton is no longer a covered commodity. A definition of “temperate japonica rice” is added as a type of medium grain rice, as specified in the 2014 Farm Bill.
This rule revises 7 CFR part 1412, adding the regulations for CTAP and some of the regulations for ARC and PLC, and removing all the regulations for DCP and ACRE as discussed above. The revised 7 CFR part 1412 will use a similar subpart structure to the previous DCP and ACRE regulations. The new title of the part is “Agriculture Risk Coverage, Price Loss Coverage, and Cotton Transition Assistance Program.” Subpart A will cover general administration; subpart B will cover base acres; subpart C will cover yields for ARC and PLC; subpart D will cover ARC and PLC contract terms and enrollment provisions; subpart E will cover financial considerations including sharing payments; subpart F will cover violations; subpart G will cover PLC and ARC election; and subpart H will cover CTAP. Subparts C and G will be added in the separate rulemaking to implement the ARC and PLC Programs. This rule includes the sections needed to implement CTAP, and includes some sections that also apply to ARC and PLC, or that involve generic base acres as discussed above. Sections in 7 CFR part 1412 that apply only to ARC and PLC will be added in a subsequent rulemaking.
In general, the Administrative Procedure Act (5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the
The Administrative Procedure Act (5 U.S.C. 553) provides generally that before rules are issued by Government agencies, the rule is required to be published in the
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as economically significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has reviewed this rule. This regulatory action is being taken to implement a major budgetary program required by the 2014 Farm Bill. Consistent with OMB guidance, this type of action is considered a budgetary transfer representing a payment from taxpayers to program beneficiaries unrelated to the provision of any goods or services in exchange for the payment. As such, there are no economic gains, because the benefits and payments to those who receive such a transfer are matched by the costs borne by taxpayers. The estimated transfer payments for CTAP provided by this rule are summarized below. The full cost benefit analysis is available on regulations.gov.
CTAP payments are estimated to be $572.1 million for 2014 and $1.6 million for 2015. In 2013, approximately 122,000 producers enrolled upland cotton base acres in DCP and ACRE. For 2014, we estimate a similar number of producers and farms will apply for 2014 CTAP payments totaling $572.1 million. For 2015, we estimate approximately 18,000 producers with 2013 upland cotton base acres in areas where STAX has not yet been implemented will apply for CTAP payments totaling $1.6 million.
Some producers with cotton base acres did not enroll those acres in DCP and ACRE. If those producers apply for CTAP, meaning that every potentially eligible cotton base acre generates a CTAP payment, the estimates would be slightly higher, at $624 million for 2014 and $1.8 million for 2015.
There is a payment limit of $40,000 per year per person or legal entity for CTAP.
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) 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. This rule is not subject to the Regulatory Flexibility Act because CCC is not required by any law to publish a proposed rule for public comment for this rulemaking initiative.
The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). FSA has determined that participation in programs similar to those currently found in 7 CFR 1412 will not significantly affect the quality of the human environment (7 CFR part 799.9(d)). Therefore no environmental assessment or environmental impact statement will be prepared.
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. For reasons specified in the Notice to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The rule will not have retroactive effect. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.
This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.
FSA has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified in this rule are not expressly mandated by the 2014 Farm Bill.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory
This rule is a major rule under the Small Business Regulatory Enforcement Fairness Act of 1996, (Pub. L. 104-121, SBREFA). SBREFA normally requires that an agency delay the effective date of a major rule for 60 days from the date of publication to allow for Congressional review. Section 808 of SBREFA allows an agency to make a major regulation effective immediately if the agency finds there is good cause to do so. Section 1601(c)(3) of the 2014 Farm Bill provides that the authority in Section 808 of SBREFA will be used in implementing the changes required by Title I of the 2014 Farm Bill, such as for the changes being made by this rule. Consistent with section 1601(c)(3) of the 2014 Farm Bill, FSA therefore finds that it would be contrary to the public interest to delay the effective date of this rule because it would delay implementation of CTAP as specified in the 2014 Farm Bill. The regulation needs to be effective to provide adequate time for producers to be ready to begin the sign-up process in a timely fashion and make payments as soon as possible after October 1, 2014. Therefore, this rule is effective when published in the
The title and number of the Federal Domestic Assistance Program found in the Catalog of Federal Domestic Assistance to which this rule applies are:
The regulations in this rule are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in subsection 1601(c)(2)(B) of the 2014 Farm Bill, which provides that these regulations be promulgated and administered without regard to the Paperwork Reduction Act.
FSA and CCC are committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Cotton, Feed grains, Oilseeds, Peanuts, Price support programs, Reporting and recordkeeping requirements, Rice, Soil conservation, Wheat.
For the reasons discussed above, CCC revises 7 CFR part 1412 to read as follows:
7 U.S.C. 1508b, 7911-7912, 7916, 8702, 8711-8712, 8751-8752, and 15 U.S.C. 714b and 714c.
(a) This part specifies how base acres, generic base acres, and farm program payment yields are established or adjusted for the purpose of calculating payments for agriculture risk coverage (ARC) and price loss coverage (PLC) for covered commodities: Wheat, oats, and barley (including wheat, oats, and barley used for haying and grazing); corn; grain sorghum; long grain rice; medium grain rice; pulse crops; soybeans; other oilseeds; and peanuts. This part specifies how and when producers on a farm may make a one-time election on a farm to obtain either ARC or PLC (and if ARC, whether to receive ARC payments based on county coverage applicable on a covered commodity-by-commodity basis; or individual coverage applicable to all the covered commodities on a farm).
(b) This part specifies how upland cotton base acres that were in existence for 2013, as adjusted, are determined for the purpose of making CTAP payments in 2014 and 2015 to eligible producers.
(c) Payments otherwise provided for in this part are subject to changes made by law in rates, conditions, and eligibility notwithstanding any contract or application made under this part. However, any such modification may, as determined by CCC, allow producers the opportunity to withdraw their CTAP application or the ARC or PLC contract.
(d) If any refund is due to CCC under this part, interest will be due from the date of the CCC disbursement except as determined by CCC. The provisions of this section will apply notwithstanding any other provision of this or any other part. In order to receive payment under this part a participant is required to
(e) For ARC and PLC, assistance under this part will be based on the administrative county of the farm and for CTAP, assistance under this part will be based on the physical location of the farm, as specified in part 718 of this title.
(a) ARC, PLC, and CTAP are administered under the general supervision of the Executive Vice-President, CCC, and will be carried out by FSA State and county committees (State and county committees).
(b) State and county committees, and representatives and their employees, do not have authority to modify or waive any of the provisions of the regulations of this part.
(c) The State committee may take any action required by the regulations of this part that the county committee has not taken. The State committee will also:
(1) Correct, or require a county committee to correct, any action taken by such county committee that is not in accordance with the regulations of this part; or
(2) Require a county committee to withhold taking any action that is not in accordance with this part.
(d) No provision or delegation to a State or county committee will preclude the Executive Vice President, or the Deputy Administrator, or a designee, from determining any question arising under the program or from reversing or modifying any determination made by a State or county committee.
(e) The Deputy Administrator has the authority to permit State and county committees to waive or modify deadlines (except deadlines specified in a law) and other requirements not specified by law, in cases where lateness or failure to meet such other requirements does not adversely affect operation of the program.
(1) Producers and participants have no right to a decision requesting an exception for a decision about waiving or modifying deadlines. The Deputy Administrator's refusal to consider waiver or modification cases or circumstances or a decision not to exercise this discretionary authority under this section will not be considered an adverse decision and is not appealable.
(2) CCC's decision not to consider a case under this section will not constitute a failure to act under any law or regulation because participants have no right to a waiver or modification under this section, they likewise have no right to a decision on a request for waiver or modification.
(f) A representative of CCC may execute the FSA application form titled “Cotton Transition Assistance Program (CTAP) Application” only under the terms and conditions determined and announced by the Executive Vice President, CCC. Any application or contract that is not executed in accordance with such terms and conditions, including any alleged execution prior to or after the dates authorized by the Executive Vice President, CCC, is null and void and will not be considered to be an application or contract between CCC and the operator or any other producer on the farm.
The definitions in this section are applicable for all purposes of administering this part. The terms defined in part 718 of this title and part 1400 of this chapter are also applicable, except where those definitions conflict with the definitions specified in this section. Where there is a conflict or a difference in definitions specified in this part and part 718 of this title or part 1400 of this chapter, the regulations in this part will apply.
(1) Land has been approved by the local government for uses other than commercial agricultural uses; and
(2) Construction activity has begun to install any aspect of the development, for example utilities or roadways.
(1) Produced from pure strain varieties of the Barbadense species or any hybrid of the species, or other similar types of extra long staple cotton, designated by the Secretary, having characteristics needed for various end uses for which United States upland cotton is not suitable and grown in irrigated cotton-growing regions of the United States designated by the Secretary or other areas designated by the Secretary as suitable for the production of the varieties or types; and
(2) Ginned on a roller-type gin or, if authorized by the Secretary, ginned on another type of gin for experimental purposes.
(1) For the purpose of ARC-CO and PLC, subject to planting flexibility provisions as specified § 1412.46, the payment acres for each covered commodity on a farm will be equal to 85 percent of the base acres for the covered commodity on the farm.
(2) For the purpose of ARC-IC, subject to planting flexibility provisions as specified in § 1412.46, the payment acres for a farm will be equal to 65 percent of the base acres for all of the covered commodities on the farm.
(3) For the purpose of CTAP under subpart H of this part, the payment acres for a farm are the base acres of upland cotton in effect on a farm on September 30, 2013, subject to any adjustment or reduction under this part.
(1) A covered commodity, the yield established under subpart C of this part; and
(2) Upland cotton, the direct payment yield for upland cotton for the farm as of September 30, 2013.
(1) Wheat, $5.50 per bushel;
(2) Corn, $3.70 per bushel;
(3) Grain sorghum, $3.95 per bushel;
(4) Barley, $4.95 per bushel;
(5) Oats, $2.40 per bushel;
(6) Long grain rice, $14.00 per hundredweight;
(7) Medium grain rice, $14.00 per hundredweight;
(8) Soybeans, $8.40 per bushel;
(9) Other oilseeds, $20.15 per hundredweight;
(10) Peanuts, $535.00 per ton;
(11) Dry peas, $11.00 per hundredweight;
(12) Lentils, $19.97 per hundredweight;
(13) Small chickpeas, $19.04 per hundredweight; and
(14) Large chickpeas, $21.54 per hundredweight.
(1) Reallocation of base acres under subpart B of this part;
(2) Establishment of a reference price of 115 percent times the established reference price of medium grain rice and determining temperate japonica rice's own effective price; and
(3) Determination of the actual crop revenue and ARC guarantee under subparts D and E of this part.
A participant may seek reconsideration and review of any individual program eligibility adverse determination made under this part in accordance with the appeal regulations found at parts 11 and 780 of this title.
(a) Subject to paragraphs (b) and (c) of this section, CCC will annually adjust the base acres for covered commodities and generic base acres with respect to the farm by the number of production flexibility contract acres or base acres protected by a Conservation Reserve Program (CRP) contract that expired, was voluntarily terminated, or was early released.
(b) The total base acres and generic base acres on a farm cannot exceed the limitation specified in § 1412.24.
(c) Adjustments to (not reallocation of) base acres and generic base acres on a farm in accordance with this section are to be completed by no later than August 1 or other date as determined and announced by the CRP contract expired or was voluntarily terminated.
(d) For the fiscal year in which an adjustment to base acres under this section is made, the producer of the farm may elect to receive ARC or PLC payments, in accordance with any ARC and PLC election made under section 1115 of the 2014 Farm Bill with respect to the base acres added to the farm under this section, or a prorated payment under the CRP contract, but not both. For any farm that had all of its base acres reduced for participation in CRP, if the farm had no base acres or election in effect before an adjustment is made to put base acres of a covered commodity back on the farm, the owners of that farm will have an opportunity to reallocate base acres and the producers will have an opportunity to elect ARC or PLC within 30 days of being notified of the establishment of base acres on that farm before producers enroll base acres on that farm.
(a) The sum of the following cannot exceed the total cropland acreage on the farm, plus approved double-cropped acreage for the farm:
(1) The sum of all base acres and generic base acres (which are equal to upland cotton base acres used for CTAP) established for the farm in accordance with this part; plus
(2) Any cropland acreage on the farm enrolled in a CRP contract in accordance with part 1410 of this chapter; plus
(3) Any cropland acreage on the farm enrolled in a wetland reserve program contract in accordance with part 1467 of this chapter; plus
(4) Any other acreage on the farm enrolled in a Federal conservation program for which payments are made in exchange for not producing an agricultural commodity on the acreage.
(b) The Deputy Administrator will give the owner of the farm the opportunity to select the base acres or generic base acres (which are equal to upland cotton base acres used for CTAP) against which any reduction required in this section will be made. Absent the owner selecting the base acre or generic base acre for reduction, CCC will apply a pro-rata reduction against the base acres or generic base acres before computing and issuing any payments for the program year when a reduction becomes necessary. If a reduction is made to generic base acres on a farm, a corresponding equal reduction is made to upland cotton base acres.
(c) In applying paragraph (a) of this section, CCC will take into account the practice of double cropping on a farm, as determined by CCC.
(d) For base acre reductions:
(1) Subject to the limitation in paragraph (d)(2) of this section, a permanent reduction of all or a portion of a farm's base acres, including generic base acres (and the equal amount of upland cotton base acres), will be allowed when all owners of the farm execute and submit a written request for such reduction, on a CCC-approved standard, uniform form designated by CCC, to the FSA county office where the records for the farm are administratively maintained.
(2) A permanent reduction of all or a portion of a farm's base acres to negate or reduce a program violation is not allowed.
(e) When base acres on a farm are converted to a non-agricultural commercial or industrial use, the total base acres on the farm will be reduced accordingly regardless of the submission of a request for such reduction.
(f) The base acres and generic base acres (resulting in an equal amount of upland cotton base acres) on a farm will be proportionately reduced when it is determined that the land has been subdivided and developed for multiple residential units or other nonfarming uses if, in the judgment of the county committee, the size of the tracts and the density of the subdivision is such that the land is unlikely to return to the previous agricultural use, unless either of the following applies:
(1) The producers on the farm demonstrate that the land remains devoted to commercial agricultural production or is likely to be returned to the previous agricultural use and such land has not been divided from the farm with a farm reconstitution performed according to part 718 of this title; or
(2) A properly constituted or reconstituted farm contains sufficient land that has not yet been subdivided and developed for multiple residential units or other nonfarming uses, and the producers on the farm demonstrate that the land remains devoted to commercial agricultural production or is likely to be returned to the previous agricultural use.
Prior to enrolling the farm in the 2014 ARC or PLC program, the operator and each owner of record of a farm will be notified in writing of the number of base acres eligible for enrollment in a contract, unless such operator or owner of record of a farm requests in writing not to be furnished with the notice. The operator and each owner of record are responsible for notifying all other producers of a farm of the notice.
(a) ARC and PLC payments will only be made with respect to generic base acres P&CP to a covered commodity or eligible subsequently planted crop acreage for the crop year on a farm.
(b) Generic base acres on a farm will be attributed to a covered commodity as follows:
(1) If a single covered commodity is P&CP or eligible subsequently planted crop acreage and the total P&CP or eligible subsequently planted crop acreage exceeds the generic base acres on the farm, the generic base acres are attributed to that covered commodity in an amount equal to the total number of generic base acres on the farm.
(2) If multiple covered commodities are P&CP or eligible subsequently planted crop acreage and the total number of acres P&CP or eligible subsequently planted crop acreage to all covered commodities on the farm exceeds the generic base acres on the farm, the generic base acres will be attributed to each of the covered commodities on the farm on a pro rata basis to reflect the ratio of:
(i) The P&CP and eligible subsequently planted crop acreage to a covered commodity on the farm; to
(ii) The total P&CP and eligible subsequently planted crop acreage to all covered commodities on the farm.
(3) If the total number of P&CP and eligible subsequently planted crop acreage to all covered commodities on the farm does not exceed the generic base acres on the farm, the number of P&CP and eligible subsequently planted crop acreage to a covered commodity is attributed to that covered commodity.
(c) When generic base acres are P&CP or eligible subsequently planted crop acreage to a covered commodity or when P&CP or eligible subsequently planted crop acreage to a covered commodity is attributed to generic base acres, the generic base acres are in addition to other base acres on the farm.
(a) Any crop may be planted and harvested on base acres on a farm, except as limited in this section. Any crop may be planted on cropland in excess of the base acres on a farm.
(b) Base acres may be hayed or grazed at any time.
(c) Except as specified in paragraph (d) of this section, the planting or harvesting of perennial or harvesting of non-perennial fruits, vegetables (except mung beans and covered commodities), or wild rice, as determined by CCC, will result in an acre for acre payment reduction when such crop or crops are planted and or harvested, as applicable, on more than:
(1) 15 percent of the base acres of a farm enrolled in ARC or PLC using county coverage; or
(2) 35 percent of a farm enrolled in ARC using individual coverage.
(d) Notwithstanding the provisions of paragraph (c) of this section, perennial fruits, vegetables, and wild rice may be planted or harvested on base acres of a farm and non-perennial fruits, vegetables, and wild rice may be harvested on base acres of a farm if a producer double-crops fruits, vegetables, or wild rice with a covered commodity in any region described in paragraph (e) of this section, in which case payment acres will not be reduced for the planting or harvesting of the fruit, vegetable, or wild rice.
(e) Double-cropping for purposes of this section means planting for harvest non-perennial fruits, vegetables, or wild rice on the same acres in cycle with a planted covered commodity harvested for grain in a 12-month period under normal growing conditions for the region and being able to repeat the same cycle in the following 12-month period. For purposes of this part, the following counties have been determined to be regions having a history of double-cropping covered commodities or peanuts with fruits, vegetables, or wild rice. State committees have established the following counties as regions within their respective States:
(f) The acreage of any fruit or vegetable specified in paragraph (h) of this section will first be attributed to cropland not having base acres, followed by base acres, before applying any payment acreage reduction required by paragraph (c) of this section. The reduction will be attributed to each of the covered commodities on the farm having payment acres on a pro rata basis to reflect the ratio of the payment acres of the covered commodity on the farm to the total payment acres of all covered commodities on the farm. No reductions are applicable to CTAP payments as specified in subpart H of this part.
(g) For the purposes of this part, fruits, vegetables, and wild rice planted on payment acres of a farm under ARC or PLC Program contract:
(1) Will be considered harvested at the time of planting, unless the producer pays a fee to cover the cost of a farm visit, as specified in part 718 of this title, to verify that the fruit, vegetable, or wild rice has been destroyed before harvest, as determined by CCC, or
(2) Will not be considered as planted to a fruit, vegetable, or wild rice when reported by a producer on the farm with an intended use of green manure or forage, as determined by CCC, and a fee to cover the cost of a farm visit is paid by the producer, as specified in part 718 of this title, to verify that the crop has not been harvested.
(h) Unless otherwise specifically included as a covered commodity as specified in this part, fruits and vegetables include, but are not limited to, all nuts except peanuts, certain fruit-bearing trees and: Acerola (barbados cherry), antidesma, apples, apricots, aragula, ariona (chokeberry), artichokes, asparagus, atemoya (custard apple), avocados, babaco papayas, bananas, beans (except soybeans, mung, adzuki, faba, and lupin), beets—other than sugar, blackberries, blackeye peas, blueberries, bok spare choy, boysenberries, breadfruit, broccoflower, broccolo-cavalo, broccoli, brussel sprouts, cabbage, cailang, caimito, calabaza, carambola (star fruit), calaboose, carob, carrots, cascadeberries, cauliflower, celeriac, celery, chayote, cherimoyas (sugar apples), canary melon, cantaloupes, cardoon, casaba melon, cassava, cherries, chinese bitter melon, chicory, chinese cabbage, chinese mustard, chinese water chestnuts, chufes, citron, citron melon, coffee, collards, cowpeas, crabapples, cranberries, cressie greens, crenshaw melons, cucumbers, currants, cushaw, daikon, dasheen, dates, dry edible beans, dunga, eggplant, elderberries, elut, endive, escarole, etou, feijoas, figs, gai lien, gailon, galanga, genip, gooseberries, grapefruit, grapes, guambana, guavas, guy choy, honeydew melon, huckleberries, jackfruit, jerusalem artichokes, jicama, jojoba, kale, kenya, kiwifruit, kohlrabi, kumquats, leeks, lemons, lettuce, limequats, limes, lobok, loganberries, longon, loquats, lotus root, lychee (litchi), mandarins, mangos, marionberries, mar bub, melongene, mesple, mizuna, mongosteen, moqua, mulberries, murcotts, mushrooms, mustard greens, nectarines, ny Yu, okra, olallieberries, olives, onions, opo, oranges, papaya, paprika, parsnip, passion fruits, peaches, pears, peas, all peppers, persimmon, persian melon, pimentos, pineapple, pistachios, plantain, plumcots, plums, pomegranates, potatoes, prunes, pummelo, pumpkins, quinces, radicchio, radishes, raisins, raisins (distilling), rambutan, rape greens, rapini, raspberries, recao, rhubarb, rutabaga, santa claus melon, salsify, saodilla, sapote, savory, scallions, shallots, shiso, spinach, squash, strawberries, suk gat, swiss chard, sweet corn, sweet potatoes, tangelos, tangerines, tangos, tangors, taniers, taro root, tau chai, teff, tindora, tomatillos, tomatoes, turnips, turnip greens, watercress, watermelons, white sapote, yam, and yam yu choy.
(a) The regulations in this part and CCC's interpretation of the regulations in this part and internal agency directives issued to FSA State and county offices are matters of general applicability and are not individually appealable in administrative appeals according to §§ 11.3 and 780.5 of this title. Additionally, the regulations in this part and any decisions of CCC and FSA that are not based on specific facts derived from an individual participant's application, contract, or file are not appealable under part 11 or part 780 of this title. Examples of such decisions include how the program is generally administered, signup deadlines, payment rates, or any other generally applicable matter or determination that is made by CCC or FSA for use in all similarly situated applications. The only extent by which the matters referenced in this section are reviewable administratively in an appeal forum is whether FSA's or CCC's decision to apply the generally applicable matter is factually accurate and in conformance with the regulations in this part.
(b) The relief provisions of 7 CFR part 718 are applicable only to ineligibility and noncompliance decisions. The relief provisions cannot be used to extend a benefit or assistance not otherwise available under law or not otherwise available to others who have satisfied or complied with every eligibility or compliance requirement of the provisions of this part. Equitable relief provisions of part 718 of this title cannot be used to obtain a review of either these regulations, the requirements of this part, the agency's interpretations of this part, or compliance provisions of this part.
(a) The provisions of part 1400 of this chapter apply to this part. Payments under this part cannot exceed the amounts specified in part 1400 of this chapter.
(b) No person or legal entity may receive, directly or indirectly, more than $40,000 in CTAP payments in each of the 2014 and 2015 crop years.
(c) For all covered commodities other than peanuts, the total amount of ARC and PLC payments received, directly or indirectly, by a person or legal entity (except a joint venture or general partnership) for any crop year together
(d) For peanuts, the total amount of payments received, directly or indirectly, by a person or legal entity (except a joint venture or general partnership) for any crop year together with any marketing loan gains or loan deficiency payments under subtitle B of title I of the 2014 Farm Bill for peanuts cannot exceed $125,000.
(a) Each eligible producer on a farm may apply for CTAP as specified in subpart H of this part and annually enroll in an ARC or PLC contract, as applicable, and receive assistance and payments determined to be fair and equitable as agreed to by all the producers on the farm and approved by the county committee.
(b) Each person or legal entity leasing a farm who applies for CTAP or elects and enrolls in ARC or PLC is required to provide a copy of their written lease to the county committee and, in the absence of a written lease, is required to provide to the county committee a complete written description of the terms and conditions of any oral agreement or lease. An owner's or landlord's signature affirming a zero share on either an application for assistance or contract under this part, as applicable, may be accepted as evidence of a cash lease between the owner or landlord and tenant, as determined by CCC. For the purposes of obtaining payments under this part, the signature or signatures, if entered on the application or contract to satisfy the requirement of furnishing a written lease, are required to be provided by the application or enrollment deadline established by CCC for the assistance or payment.
(c) When land on which base acres is leased on a share basis, neither the landlord nor the tenant is eligible to receive 100 percent of the CTAP payment or ARC or PLC contract payment for the farm.
(d) CCC will approve an ARC or PLC contract for enrollment and approve the division of payment when CCC is satisfied and determines that all of the following apply:
(1) The landlords, tenants, and sharecroppers sign the contract and agree to the payment shares shown on the contract;
(2) The interests of tenants and sharecroppers are being protected; and
(3) The payment shares shown on the application or contract do not circumvent either the provisions of this part or the provisions of part 1400 of this chapter.
(4) If any civil dispute between persons, legal entities, or members of legal entities not involving CCC is known or suspected to exist that CCC believes might impact the eligibility of any person or legal entity or administration of ARC, PLC, or CTAP under this part, the Deputy Administrator on CCC's behalf can elect to withhold making any determination on an application or contract until such time as the Deputy Administrator and CCC are satisfied that the dispute is resolved or no longer has any bearing on either the administration of ARC, PLC, or CTAP under this part or any eligible producer or potential eligible producer. A decision withheld under to this paragraph will not be construed to be a decision or adverse decision under any law or regulation nor will it be construed to be a failure of FSA or CCC to act under any law or regulation.
(e) A lease will be considered to be a cash lease if the lease provides for only a guaranteed cash payment for a specified amount, or a fixed quantity of the crop (for example, pounds, or bushels per acre).
(1) If a lease contains provisions that require the payment of rent on the basis of the amount of crop produced or the proceeds derived from the crop, or the interest such producer would have had if the crop had been produced, or combination thereof, the agreement will be considered to be a share lease.
(2) If a lease provides for a guaranteed amount and a share of the crop or crop proceeds, the agreement will be considered a cash lease.
(3) If the lease is a cash lease, the landlord is not eligible for assistance or payments under this part. The leasing of grazing or haying privileges is not considered cash leasing.
(f) Shares of P&CP or eligible subsequently planted crop acreage of covered commodities on generic base acres will be determined based on the attribution in § 1412.45 and shares recorded on the report of acreage filed in accordance with § 1412.66. Shares of PLC and ARC-CO will be determined based on the shares entered on the contract. Shares of ARC-IC payments will be determined based on the shares recorded on the report of acreage filed as specified in § 1412.66. Further, each eligible producer having a share of P&CP or eligible subsequently planted crop acreage of covered commodities on a farm enrolled under an ARC or PLC Program contract has to do both of the following to be eligible for their share of a payment:
(1) Unless otherwise already enrolled on the ARC or PLC Program contract, sign the ARC or PLC Program contract during the contract period; and
(2) Have the producer's share recorded on the report of acreage filed as required by part 718 of this title and § 1412.66 of this part.
(g) In a case where a producer has failed to sign an ARC or PLC Program contract by the signup deadline or contract period established for enrollment and participation for the producer's reported share of P&CP acres or eligible subsequently planted crop acreage of covered commodities on a farm enrolled as specified in this part, that producer's share will not receive any consideration for payment and will not generate any payment to the producer or to any other producer on the farm.
(h) CCC's approval of a CTAP application or ARC or PLC contract or shares under this part based on the representations of persons or legal entities signing the CTAP application, or ARC or PLC contract, or acreage report in no way implies or will be construed as CCC's determination that the representations or assertions made by persons or legal entities signing the CTAP application, or ARC or PLC contract, or acreage report are correct or are approved as legitimate. Any and all assertions and representations of a person, persons, legal entity, or legal entities signing forms, applications, or contracts incidental to program participation in this part are always subject to review and scrutiny or spot check by CCC. CCC can at any time demand documentation to substantiate any representation made by any program participant under this part and recover unearned amounts that are determined to have been paid based on such erroneous representation.
(a) No payment or assistance authorized under this part will be made by CCC if:
(1) The landlord or operator has adopted a scheme or device for the purpose of depriving any tenant or sharecropper of the payments to which such person would otherwise be entitled under ARC, PLC, or CTAP. If any of such conditions occur or are discovered after payments have been made, all or any such part of the payments as the State committee may determine are required to be refunded to CCC; or
(2) The landlord terminated a lease in violation of State law as determined by a State court.
(b) [Reserved]
Violations of contract or application requirements will result in the termination or cancellation of the ARC or PLC contract or CTAP application, as applicable. Upon such termination or cancellation, all producers that signed the contract or application forfeit all rights to receive payments for the ARC or PLC contract or CTAP application and are required to refund all payments received, plus interest as specified in § 1412.1(d) of this part, as determined in accordance with part 1403 of this chapter.
All producers who signed an ARC or PLC Program contract or CTAP application made according to this part are jointly and severally liable for contract or application violations and resulting repayments and penalties.
(a) Producers are required to accurately report and certify information provided to CCC for ARC, PLC, and CTAP. Any form containing the signature of a person or legal entity that contains a preprinted certification statement on the form will be construed to be a representation and certification of and from the person or legal entity signing the form regardless of whether or not the person or legal entity personally made the entry or entries on the form. Errors in reporting may impact eligibility or extent of eligibility. Payments under this part will be based on the most correct information available. CCC's issuing payments based on the face of a contract or application does not signify CCC's approval of the representations made by participants. Producers are responsible for refunding, with interest as specified in § 1412.1(d) of this part, any program benefits that were paid based on incorrect program information.
(b) For those cases in which FSA determines that an inaccurate representation or certification is due to a misrepresentation, scheme, or device, the person or legal entity or members of the legal entity will be ineligible to receive ARC, PLC, or CTAP payments and will have the person, legal entity's or member's interest in all contracts or applications terminated if it is determined that such person, legal entity, or member of the legal entity has done any of the following:
(1) Adopted any scheme or device that tends to defeat the purpose of this part;
(2) Made any fraudulent representation;
(3) Misrepresented any fact affecting an ARC or PLC Program contract, CTAP application, or determination made under part 1400 of this chapter; or
(4) Violated or been determined ineligible under § 1400.5 of this chapter.
(c) Any remedies taken by FSA or CCC as specified in this section will be in addition to any other civil or other remedies that may be available, including, but not limited to, those provided in part 1400 of this chapter.
(a) Except as provided in paragraph (b) of this section, any payment or portion thereof to any person will be made without regard to questions of title under State law and without regard to any claim or lien against the crop, or proceeds thereof, in favor of the owner or any other creditor except agencies of the U.S. Government. The regulations governing offsets and withholdings in part 1403 of this chapter apply to contract payments.
(b) Any participant entitled to any payment may assign any payments in accordance with regulations governing the assignment of payments in part 1404 of this chapter.
(a) An accurate report of all cropland acreage on the farm is required for ARC, PLC, and CTAP. How to submit the acreage report is specified in part 718 of this title.
(b) Prevented planting acreage credit will only be available to acreage that CCC determines was prevented from being planted due to an eligible cause of loss. Acreage ineligible for prevented planted credit includes acreage not planted due to a management decision. Prevented planting acreage credit is subject to the provisions of part 718 of this title.
The provisions of part 12 of this title apply to this part.
The provisions of part 718 of this title apply to this part.
CTAP participants and enrolled ARC and PLC contract participants agree to effectively control noxious weeds and otherwise maintain the land on the farm in accordance with sound agricultural practices; and use the land on the farm for an agricultural or conserving use, and not for a nonagricultural commercial, industrial, or residential use.
(a) The provisions of this part apply to this subpart, except for provisions that apply specifically to ARC and PLC only, for example, the yield and planting flexibility provisions apply specifically to ARC and PLC. To the extent that there is a conflict with the provisions of other subparts of this part and this subpart, the provisions of this subpart apply to CTAP.
(b) CTAP payments as specified in this subpart will be made available for:
(1) The 2014 crop year to eligible producers on farms in all counties; and
(2) The 2015 crop year to eligible producers on farms only in counties where STAX is not available.
(a)
(1) The producer is a person or legal entity who is actively engaged in farming and otherwise eligible for payment, as specified in 7 CFR part 1400;
(2) The producer is on a farm that has cotton base acres that were in existence as of September 30, 2013, as adjusted; and
(3) The producer has an interest in the upland cotton base acres on the farm.
(b)
(c)
(1) For 2014 CTAP by October 7, 2014; and
(2) For 2015 CTAP, by July 31, 2015.
(a) Each eligible producer on a farm may apply for and receive CTAP payments determined to be fair and equitable as agreed to by all producers on the farm and as approved by the county committee.
(b) The provisions of § 1412.54 regarding the classification of leases apply to CTAP.
(c) Shares of CTAP payments will be determined based on shares recorded on
(a) Applications for CTAP do not establish eligibility for ARC or PLC. Interested producers are required to file documents that are specifically required for CTAP as specified on the CTAP application. An application for CTAP will not be considered an intent to participate in ARC or PLC and, conversely, an election or enrollment in ARC or PLC will not establish eligibility for CTAP.
(b) [Reserved]
(a) In the case of producers on a farm who apply for CTAP as specified in this part, and where all other eligibility provisions have been satisfied, CCC will make CTAP payments available to the producers on a farm's application as specified in this subpart.
(b) CTAP payments for upland cotton producers on farms with eligible upland cotton base acres as specified in § 1412.82(a) are equal to:
(1) For 2014, the product of multiplying 60 percent of the farm's upland cotton base acres, times the farm's direct payment yield for upland cotton, times $0.09, times the producer's share on the approved application; or
(2) Where applicable for 2015 according to this part and subpart, the product of multiplying 36.5 percent of the farm's upland cotton base acres, times the farm's direct payment yield for upland cotton, times $0.09, times the producer's share on the approved application.
(a) A succession in interest application for CTAP is required if there has been a change in the producer shares of upland cotton base acres in § 1412.82(a) for 2014 or 2015, as applicable, due to:
(1) A sale of land;
(2) A change of producer, including a change in a partnership that increases or decreases the number of partners or changes who are partners;
(3) A foreclosure, bankruptcy, or involuntary loss of the farm;
(4) A change in producer shares to reflect changes in the producer's share of the upland cotton base acres relevant to the originally approved application; or
(5) Any other change determined by the Deputy Administrator to be a succession that will not adversely affect or defeat the purpose of CTAP.
(b) A succession in interest to the CTAP application is not permitted if CCC determines that the change:
(1) Results in a violation of the landlord-tenant provisions specified in § 1412.55; or
(2) Adversely affects or otherwise defeats the purpose of CTAP.
(c) If a producer who is entitled to receive CTAP payments dies, becomes incompetent, or is otherwise unable to receive the payment, CCC will make the payment in accordance with part 707 of this title.
(d) A producer or owner of an enrolled farm is required to inform the county committee of changes in interest in base acres of upland cotton as specified in § 1412.82(b) on the farm not later than:
(1) August 1 of the fiscal year in which the change occurs if the change requires a reconstitution be completed in accordance with part 718 of this title; or
(2) September 30 of the fiscal year in which the change occurs if the change does not require a reconstitution be completed in accordance with part 718 of this title.
(e) In any case in which a CTAP payment has previously been made to a predecessor, such payment will not be paid to the successor, unless such payment has been refunded in full by the predecessor.
If, after a CTAP application is approved by CCC, it is discovered that such any information contained in the application is not in conformity with the provisions of this part, the provisions of this part will prevail.
(a) CTAP payments will be divided in the manner specified in the applicable application approved by CCC. CCC will ensure that 2014 or 2015 producers who would have a 2014 or 2015 reported share interest in cropland on the farm specified in § 1412.82(b) receive treatment that CCC deems to be equitable, as determined by CCC. CCC will refrain from acting on an application if, as determined by CCC, there is a disagreement among any person or legal entity applying as to the person's or legal entity's eligibility to apply as a tenant and there is insufficient evidence to indicate whether the person seeking participation as a tenant does or does not have a reported share interest in the cropland on the farm sufficient to cover the claimed share interest in cotton base acres of that farm as specified in § 1412.82(b) in 2014 or 2015, as applicable.
(b) CCC may remove an operator or tenant from an application under this subpart and part when the operator or tenant:
(1) Requests, in writing to be removed from the application;
(2) Files for bankruptcy and the trustee or debtor in possession fails to affirm the application, to the extent permitted by the provisions of applicable bankruptcy laws;
(3) Dies during the 2014 or 2015 program year and the Administrator of the estate fails to succeed to the application within a period of time determined by the Deputy Administrator; or
(4) Is the subject of an order of a court of competent jurisdiction requiring the removal from the application under this part and subpart of the operator or tenant and such order is received by FSA, as determined by CCC.
(c) In addition to the provisions in paragraph (b) of this section, tenants are required to maintain their tenancy throughout the crop year in order to remain on an application. Tenants who fail to maintain tenancy on the acreage under the application, including failure to comply with provisions under applicable State law, may be removed from an application by CCC. CCC will assume the tenancy is being maintained unless notified otherwise by a participant specified in the application.
U.S. Customs and Border Protection, Department of Homeland Security.
Final rule; technical amendment.
This rule amends U.S. Customs and Border Protection (CBP) regulations to reflect that CBP has added a preclearance location in Abu Dhabi, United Arab Emirates. CBP Preclearance operations in Abu Dhabi, United Arab Emirates officially began on January 24, 2014, pursuant to an agreement between the Governments of the United States and the United Arab Emirates. CBP Officers at preclearance locations conduct inspections and examinations to ensure compliance with U.S. customs, immigration, and agriculture laws, as well as other laws enforced by CBP at the U.S. border. Such inspections and examinations prior to arrival in the United States generally enable travelers to exit the domestic terminal or connect directly to a U.S. domestic flight without undergoing further CBP processing.
Dylan DeFrancisci, Office of Field Operations, 202-344-3671,
CBP preclearance operations have been in existence since 1952. Preclearance facilities are established through the cooperative efforts of CBP, foreign government representatives, and the local facility authorities and are evidenced with signed preclearance agreements.
Each facility is staffed with CBP Officers responsible for conducting inspections and examinations in connection with preclearing passengers, crew, and their goods bound for the United States. Generally, travelers who are inspected at a preclearance facility are permitted to arrive at a U.S. domestic facility and exit the U.S. domestic terminal upon arrival or connect directly to a U.S. domestic flight without further CBP processing.
Preclearance operations enhance security in the air environment through the screening and inspection of travelers prior to their arrival in the United States. Additionally, preclearance operations facilitate legitimate travel and relieve passenger congestion at federal inspection facilities in the United States. In Fiscal Year (FY) 2013, over 16 million aircraft travelers were processed at preclearance locations. This figure represents more than 15.5 percent of all commercial aircraft travelers cleared by CBP in FY 2013.
An “Agreement Between the Government of the United States of America and the Government of the United Arab Emirates on Air Transport Preclearance” (Agreement) was signed on April 15, 2013. Among other things, the Agreement sets forth the obligations of the United Arab Emirates and the United States and establishes the Abu Dhabi International Airport as a preclearance location. Under the Agreement, flights eligible for preclearance are non-stop commercial flights that are destined from the United Arab Emirates to the United States. The Agreement provides that it will be carried out in a manner consistent with the laws and constitutions of both governments. Preclearance operations officially began in Abu Dhabi, United Arab Emirates on January 24, 2014.
Section 101.5 of the CBP regulations (19 CFR 101.5) sets forth a list of CBP preclearance offices in foreign countries. This document amends this section to add Abu Dhabi, United Arab Emirates to the list of preclearance offices. This document also corrects the misspelling of the Oranjestad, Aruba preclearance location.
Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. Based on an Agreement between the Governments of the United States and the United Arab Emirates, preclearance operations in Abu Dhabi, United Arab Emirates have been operating since January 24, 2014. The final rule merely adds Abu Dhabi, United Arab Emirates to the list of CBP preclearance locations in foreign countries. This amendment is a technical change to merely update the list of preclearance locations. Therefore, notice and comment for this rule is unnecessary and contrary to the public interest because the rule has no substantive impact, is technical in nature, and relates only to management, organization, procedure, and practice. For the same reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is not required.
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This document is being issued in accordance with 19 CFR 0.2(a) because preclearance locations are not within the bounds of those regulations for which the Secretary of the Treasury has retained sole authority. Therefore, this rule may be signed by the Secretary of Homeland Security or his or her designee.
Customs duties and inspection, Customs ports of entry, Foreign trade statistics, Imports, Organization and functions (Government agencies), Shipments, Vessels.
For the reasons discussed above, part 101 of title 19 of the Code of Federal Regulations (19 CFR Part 101) is amended as set forth below.
5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1623, 1624, 1629, 1646a.
Section 101.5 also issued under 19 U.S.C. 1629.
Listed below are the preclearance offices in foreign countries where CBP Officers are located. A Director, Preclearance, located in the Office of Field Operations at CBP Headquarters, is the responsible CBP Officer exercising supervisory control over all preclearance offices.
International Trade Commission.
Final rule.
The United States International Trade Commission (“Commission”) amends provisions of its Rules of Practice and Procedure concerning national security information. The amendments are designed to ensure that the Commission's procedures with respect to national security information are consistent with applicable authorities.
This final rule is effective September 8, 2014.
Lisa R. Barton, Secretary, telephone (202) 205-2000, or Clara Kuehn, Attorney-Advisor, Office of the General Counsel, telephone (202) 205-3012, United States International Trade Commission. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at (202) 205-1810. General information concerning the Commission may also be obtained by accessing its Internet server at
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. This rulemaking updates Subpart F of Part 201 of the Commission's existing Rules of Practice and Procedure concerning national security information to ensure that Subpart F is consistent with Executive Order 13526 of December 29, 2009, and its implementing directive (32 CFR part 2001).
On April 17, 2014, the Commission published a Notice of Proposed Rulemaking (NOPR) in the
In the NOPR, the Commission requested public comment on the proposed rules, but no comments were received. The Commission found no reason to change the proposed rules before adopting them as final rules, which are republished below. A section-by-section analysis of the rules can be found at 79 FR 21658-21661 (April 17, 2014).
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute. Although the Commission published a notice of proposed rulemaking, these regulations are “agency rules of procedure and practice,” and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b). Moreover, these rules are certified as not having a significant economic impact on a substantial number of small entities.
These amended rules do not contain any information collection requirements subject to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
No actions are necessary under title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4 (2 U.S.C. 1531-1538) because these amended rules will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments.
The Commission has determined that these amended rules do not constitute a “significant regulatory action” under section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993).
These amended rules do not have federalism implications warranting the preparation of a federalism summary impact statement under Executive Order 13132 (64 FR 43255, August 4, 1999).
These amended rules are not “major rules” as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). Moreover, they are exempt from the reporting requirements of the Act because they concern rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.
Administrative practice and procedure.
For the reasons stated in the preamble, the United States International Trade Commission amends 19 CFR part 201 as follows:
Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless otherwise noted.
19 U.S.C. 1335; E.O. 13526, 75 FR 707.
This subpart supplements Executive Order 13526 of December 29, 2009, and its implementing directive (32 CFR part 2001) as it applies to the Commission.
(a)
(2)
(b)
(2) If a requester submits a request under FOIA and also requests MDR, the Secretary shall require the requester to select one process or the other. If the requester fails to select one or the other process, the Secretary will treat the request as a FOIA request unless the requested materials are subject only to MDR.
(c)
(i) Promptly process the request for declassification,
(ii) Communicate its declassification determination to the Secretary, and
(iii) If the originating agency proposes to withhold any information from public release, notify the Secretary of the specific information at issue and the applicable law that authorizes and warrants withholding such information.
(2) Unless a prior arrangement has been made with the originating agency, the Secretary shall collect the results of that agency's review and inform the requester of any final decision regarding the declassification of the requested information as follows:
(i) If the originating agency denies declassification of the requested information in whole or in part, the Secretary shall ensure that the decision provided to the requester includes notification of the right to file an administrative appeal with the originating agency within 60 days of receipt of the denial and the mailing address for the appellate authority at the originating agency.
(ii) If the originating agency declassifies the requested information in whole or in part, the Secretary shall determine whether the requested declassified information is exempt from disclosure, in whole or in part, under the provisions of a statutory authority, such as the FOIA. The Secretary shall inform the requester that an appeal from a denial of requested declassified information must be received within 60 days of the date of the letter of denial and shall be made to the Commission and addressed to the Chairman, United States International Trade Commission, 500 E Street SW., Washington, DC 20436.
(d)
(2)
(e)
By order of the Commission.
Environmental Protection Agency (EPA).
Final rule; correcting amendments.
The Environmental Protection Agency (EPA) is correcting errors in the rule language of a final rule pertaining to the infrastructure requirements for the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter (PM
This final rule is effective on August 8, 2014.
Ellen Schmitt, (215) 814-5787, or by email at
On October 11, 2011, EPA published a final rulemaking action announcing the approval of several infrastructure elements for the 1997 ozone, 1997 PM
Section 553(b)(3)(B) of the Administrative Procedure Act provides that when an agency, for good cause, finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because EPA is merely correcting an errant omission of amendatory language from a previous rulemaking action. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its PSD, NSR, or Title V program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 governments, as specified by Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.
This technical correction action does not involve technical standards, thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act (5 U.S.C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to extend two reporting deadlines for the 2013 compliance period under the Renewable Fuel Standard (RFS) program. This action specifically affects the annual compliance and attest engagement reporting requirement deadlines for regulated parties. The annual compliance reports and attest engagement reports for the 2013 RFS compliance period will not be due until 30 days and 90 days, respectively, following publication of the final rule establishing the 2014 renewable fuel percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel and total renewable fuel in the
This rule is effective on September 29, 2014 without further notice, unless the EPA receives adverse comment by September 15, 2014. If the EPA receives adverse comment, we will publish a timely withdrawal notice in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0575, by one of the following methods:
•
•
•
•
Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; Telephone number: 734-214-4131; Fax number: 734-214-4816; Email address:
The EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's
If the EPA receives adverse comment, we will publish a timely withdrawal in the
Entities potentially affected by this direct final rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Potentially regulated categories include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that the EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your activities would be regulated by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.
The EPA is today taking action to amend existing regulatory deadlines for regulated parties under the RFS program regarding the submission of annual compliance reports and attest engagement reports for the 2013 RFS compliance period.
We received comments on our November 29, 2013 proposed rulemaking to establish the 2014 renewable fuel percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel and total renewable fuel
Because the 2014 renewable fuel standards were not final at the time the annual compliance reports for the 2013 RFS compliance period were coming due, we further extended this reporting deadline until September 30, 2014 (as well as the associated deadline for attest engagement reports until January 30, 2015).
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).
There are no new information collection requirements associated with this rulemaking. The extension of the existing regulatory deadlines for regulated parties under the RFS program imposes no new or different reporting requirements on regulated parties. The existing information collection requests (ICR) that apply to the RFS program are sufficient to address the reporting requirements in the regulations.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
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 Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business 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 rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This rule amends the existing regulatory deadlines for regulated parties under the RFS program to submit reports demonstrating their compliance with the 2013 RFS standards, and to submit corresponding attest engagement reports. This action ensures timely amendment of existing deadlines, before compliance obligations would otherwise go into effect. The impacts of the RFS program on small entities were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670), and this rule will not impose any additional requirements on small entities beyond those already analyzed.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and merely extends the otherwise applicable reporting deadlines.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action amends the existing regulatory deadlines for regulated parties under the RFS program to submit reports demonstrating their compliance with the 2013 RFS standards, and to submit corresponding attest engagement reports. The new deadlines only apply to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers. Thus, Executive Order 13132 does not apply to this rule.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will be implemented at the Federal level and affects transportation fuel refiners, blenders, marketers, distributors, importers, exporters, and renewable fuel producers and importers. Tribal governments will be affected only to the extent they purchase and use regulated fuels. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks and because it implements specific standards established by Congress in statutes (section 211(o) of the Clean Air Act).
This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action simply amends certain reporting deadlines for regulated parties under the RFS program.
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)
This rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action does not relax the control measures on sources regulated by the RFS regulations and therefore will not cause emissions increases from these sources.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Statutory authority for this action comes from sections 211 and 301(a) of the Clean Air Act, 42 U.S.C 7545 and 7601(a).
Environmental protection, Administrative practice and procedure, Air pollution control, Diesel fuel, Fuel additives, Gasoline, Imports, Oil imports, Petroleum, Renewable fuel.
For the reasons set forth in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7414, 7521, 7545, and 7601(a).
(a) * * *
(1) * * *
(xiv) For the 2013 compliance year, annual compliance reports shall be submitted within 30 days after publication in the
(g) For the 2013 compliance year, reports required under this section shall be submitted to the EPA within 90 days after publication in the
Environmental Protection Agency (EPA).
Final rule.
This rule consists of three parts. First, the Environmental Protection Agency (EPA) is adopting minimum maintenance intervals for replenishment of consumable chemical reductant (commonly known as diesel exhaust fluid, or DEF) in connection with the use of selective catalytic reduction (SCR) technologies. Second, EPA is adopting provisions allowing manufacturers of nonroad engines to give operators the means to obtain short-term relief from emission controls while operating in emergency situations, such as those where operation of a nonroad engine or equipment is needed to protect human life, and where obtaining short-term relief from emission controls enables such operation. Third, EPA is adopting minor revisions to the direct final rule for emergency vehicles that became effective August 7, 2012, in response to comments received on the parallel Notice of Proposed Rulemaking.
This rule is effective on September 8, 2014.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2011-1032. All documents in the docket are listed on the
Lauren Steele, Environmental Protection Agency, Office of Transportation and Air Quality, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, Michigan 48105; telephone number: 734-214-4788; fax number: 734-214-4816; email address:
This action may affect you if you produce or import diesel engines that make use of a consumable chemical reductant to comply with emissions standards for nitrogen oxides.
The following table gives some examples of entities that may be affected by this action. Because these are only examples, you should carefully examine the regulations in 40 CFR parts 85, 86 and 1039. If you have questions regarding how or whether this rule applies to you, you may call the person listed in
EPA is amending its regulations for diesel engines to add provisions specifying emission-related maintenance and scheduled maintenance intervals for replenishment of consumable chemical reductant in connection with engines and vehicles that use selective catalytic reduction (SCR) technologies. This action improves the clarity and transparency of EPA's requirements for SCR systems.
Most manufacturers of diesel engines and vehicles subject to EPA's standards regulating oxides of nitrogen (NO
Given that SCR use is now common in the transportation sector and replenishment of DEF is necessary for SCR to be effective, in this final rule EPA is adding DEF replenishment to the list of scheduled emission-related maintenance published in the Code of Federal Regulations (CFR), and is adopting minimum replenishment intervals for this fluid, rather than relying on a case-by-case approval as was done under the previous regulations. We are adopting, as proposed, a minimum DEF replenishment interval for centrally fueled vocational vehicles equivalent in miles to the range provided by the fuel tank size; that is, a 1:1 distance ratio of DEF refill to fuel refill. In response to comments, we are adopting a minimum DEF replenishment interval for other heavy-duty vehicles equivalent to the fuel range (1:1), and a minimum interval of 4,000 miles for light-duty vehicles. See Section III for a complete description of comments received and explanations of the Agency's decisions.
EPA is adopting provisions allowing manufacturers of compression-ignition nonroad engines (generally, those fueled with diesel fuel) to give operators the means to obtain short-term relief from emission controls while operating in
On June 8, 2012, EPA published a direct final rule (DFR) for dedicated emergency vehicles that went into effect on August 7, 2012 (77 FR 34130). Under the June 8, 2012, rule, engine manufacturers were permitted to request to deploy specific emission controls or settings approved as Auxiliary Emission Control Devices (AECDs) for new engines, and Emergency Vehicle Field Modifications (EVFMs) for in-use engines that are sold for use only in emergency vehicles, defined as ambulances and fire trucks at 40 CFR 86.1803-01. EPA adopted that rule to enable dedicated emergency vehicles with diesel engines to perform mission-critical life- and property-saving work without risk of losing power, speed or torque due to abnormal conditions of the emission control systems. In this final action, EPA is revising some provisions of that final rule, consistent with comments received.
Specifically, EPA is allowing for case-by-case review of applications for AECDs or EVFMs for vehicles that EPA determines will be used in emergency situations where emission control function or malfunction may cause a significant risk to human life. With this amendment, it is EPA's intent to include vehicles other than fire trucks or ambulances that will be used for performing other public safety, rescue or emergency personnel or equipment transport functions related to saving lives and reducing injuries coincident with fires and other hazardous situations.
EPA is also modifying the definition of emergency equipment at 40 CFR 1039.801. We are clarifying which nonroad engines meet this definition, and we are allowing for case-by-case review of applications for AECDs or Emergency Equipment Field Modifications (EEFMs) for other emergency equipment. See Section V for a complete description of comments received and explanations of the Agency's amendments to this rule.
Section 202(a)(1) of the Clean Air Act (CAA or the Act) directs EPA to establish standards regulating the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines that, in the Administrator's judgment, causes or contributes to air pollution which may reasonably be anticipated to endanger public health or welfare. Such standards apply for the useful life of the vehicles or engines. Section 202(a)(3) requires that EPA set standards applicable to emissions of hydrocarbons, carbon monoxide, NO
Section 202(a)(4)(A) of the Act requires the Administrator to consider risks to public health, welfare or safety in determining whether an emission control device, system or element of design shall be used in a new motor vehicle or new motor vehicle engine. Under section 202(a)(4)(B), the Administrator shall consider available methods for reducing risk to public health, welfare or safety associated with use of such device, system or element of design, as well as the availability of other devices, systems or elements of design which may be used to conform to requirements prescribed by (this subchapter) without causing or contributing to such unreasonable risk.
Section 206(a) of the Act requires EPA to test, or require to be tested in such manner as it deems appropriate, motor vehicles or motor vehicle engines submitted by a manufacturer to determine whether such vehicle or engine conforms to the regulations promulgated under section 202. Section 206(d) provides that EPA shall by regulation establish methods and procedures for making tests under section 206.
Section 213 of the Act gives EPA the authority to establish emissions standards for nonroad engines and vehicles (42 U.S.C. 7547). Sections 213(a)(3) and (a)(4) authorize the Administrator to set standards and require EPA to give appropriate consideration to cost, lead time, noise, energy, and safety factors associated with the application of technology. Section 213(a)(4) authorizes the Administrator to establish standards to control emissions of pollutants (other than those covered by section 213(a)(3)) which “may reasonably be anticipated to endanger public health and welfare.” Section 213(d) requires the standards under section 213 to be subject to sections 206-209 of the Act and to be enforced in the same manner as standards prescribed under section 202 of the Act.
On January 18, 2001, EPA published a rule promulgating more stringent standards for NO
The heavy-duty highway rule adopted in 2001 also included a PM emissions standard for new heavy-duty diesel engines of 0.01 g/bhp-hr, effective for engines beginning with MY 2007. To meet this stringent PM standard,
On June 29, 2004, EPA adopted technology-forcing standards for nonroad diesel engines, phasing in from the 2011 to 2015 model years.
On October 15, 2012, in a final rule issued jointly with the National Highway Traffic Safety Administration (NHTSA), EPA excluded light-duty emergency and police vehicles from all phases of greenhouse gas (GHG) emissions standards, in part due to concerns related to technical feasibility, and in part to harmonize with NHTSA's program. Consistent with authority under the Energy Policy and Conservation Act, NHTSA's corporate average fuel economy program provides manufacturers with the option to exclude emergency vehicles.
In addition to the exemption for on-highway engines from GHG standards, EPA has provided limited regulatory relief for other types of emergency-use engines. First, EPA's May 6, 2008, final rule adopting Tier 3 and Tier 4 standards for marine diesel engines allows for emergency and rescue vessels to meet an earlier, less stringent tier of standards under 40 CFR parts 89, 94 and 1042.
On June 8, 2012, EPA published a direct final rule for dedicated emergency vehicles, which became effective on August 7, 2012 (77 FR 34129). This rule revised the definition of defeat device to exclude EPA-approved Auxiliary Emission Control Devices (AECDs) for new engines, and Emergency Vehicle Field Modifications (EVFMs) for in-use engines that are sold for use only in fire trucks, ambulances, and dedicated nonroad emergency equipment. This rule maintains the applicability of the criteria pollutant emissions standards to emergency vehicles, while providing flexibility to manufacturers to design emission control systems that are appropriate for the extreme duty cycles of some trucks.
In this action, EPA is adding new provisions in its regulations that explicitly address replacement of DEF as part of approved emission-related scheduled maintenance and set out the permitted maintenance intervals for replacement of DEF on diesel-fueled new motor vehicles, new motor vehicle engines and new nonroad compression-ignition (NRCI) engines. The DEF refill regulations being finalized in this action allow for shorter intervals between maintenance in certain cases, compared to EPA's previous scheduled maintenance intervals, as described in Section III.C. EPA has previously applied the scheduled maintenance requirements for DEF refill through its alternate maintenance authority in 40 CFR 86.094-25(b)(7) and 40 CFR 86.1834-01(b)(7), which allows EPA to approve either a new scheduled maintenance interval or a change to an existing scheduled maintenance interval, based on a manufacturer's demonstration.
EPA's regulations limit the emission-related scheduled maintenance that may be performed for purposes of durability testing and for inclusion in maintenance instructions provided to purchasers of new motor vehicles and new motor vehicle engines. See 40 CFR 86.004-25(b); 40 CFR 86.094-25(b); 40 CFR 86.1834-01(b). The regulations include lists of specific types of emission-related maintenance and establish minimum allowable intervals for this maintenance. See 40 CFR 86.004-25(b)(4); 40 CFR 86.1834-01(b)(4). For example, in general, the maintenance interval is in miles for the adjustment, cleaning, or repair of fuel injectors, turbochargers, electronic engine control units, particulate trap or trap-oxidizers, exhaust gas recirculation systems, and catalytic converters. The minimum allowable limit is 100,000 miles of use (and then at 100,000 mile intervals thereafter) for diesel cycle light-duty vehicles, diesel cycle light-duty trucks, and light heavy-duty diesel engines and 150,000 miles for medium and heavy heavy-duty diesel engines. The regulations also allow manufacturers to request a different maintenance schedule or to request new scheduled maintenance, which includes maintenance that is a direct result of the implementation of new technology not found in production prior to MY 1980. This allowance is specified in 40 CFR 86.094-25(b)(7) and 40 CFR 86.1834-01(b)(7), and it is sometimes known as the (b)(7) process. This process requires manufacturers to justify that the additional maintenance is necessary and to demonstrate, for critical emission-related scheduled maintenance, that it is likely to be performed in use.
Similarly, EPA's regulations for NRCI engines (40 CFR 1039.125) limit the emission-related maintenance that may be performed for purposes of emissions testing and providing ultimate purchasers written instructions for properly maintaining and using the engine. For example, the maintenance interval for adjustment, cleaning, repair or replacement for catalytic converters generally may not occur more frequently than after 3,000 hours of use for engines below 130 kilowatt (kW) and 4,500 hours for engines at or above 130 kW. This regulation also allows manufacturers to request a different maintenance schedule or to request new scheduled maintenance, which includes maintenance on emission-related components that were not in widespread use on NRCI engines prior to MY 2011.
EPA adopted new emission standards applicable to emissions of NO
EPA adopted similar new emission standards applicable to emissions of NO
In a guidance document signed on March 27, 2007 (CISD-07-07), EPA indicated its belief that the requirements for critical emission-related maintenance would apply to replenishment of the DEF tank and that manufacturers wanting to use SCR technology would likely have to request a change to scheduled maintenance per 40 CFR 86.094-25(b)(7) or 86.1834-01(b)(7).
Following the completion of the guidance, EPA received several requests for new maintenance intervals for SCR-equipped motor vehicles and motor vehicle engines.
. . . believes the maintenance of performing DEF refills on SCR systems should be considered as `critical emission-related scheduled maintenance.' EPA believes the existing allowable schedule maintenance mileage intervals applicable to catalytic converters are generally applicable to SCR systems which contain a catalyst, but that the DEF refills are a new type of maintenance uniquely associated with SCR systems. Therefore, the 100,000-mile interval at 40 CFR § 86.1834-01(b)(4)(ii) for catalytic converters on diesel-cycle light-duty vehicles and light-duty trucks (and any other chassis-certified vehicles) and the 100,000-mile interval (and 100,000 mile intervals thereafter) for light heavy-duty diesel engines and the 100,000-mile interval (and 150,000 mile intervals thereafter) for medium and heavy heavy-duty diesel engines at 40 CFR § 86.004-25(b)(4)(iii) are generally applicable to SCR systems. As noted, the SCR systems are a new type of technology designed to meet the newest emission standards and the DEF refill intervals represent a new type of scheduled maintenance; therefore, EPA believes that manufacturers may request from EPA the ability to perform the new scheduled maintenance of DEF refills.
Consistent with that statement, EPA approved a minimum maintenance interval for refill of DEF tanks equal to the applicable vehicle's scheduled oil change interval for light-duty vehicles and light-duty trucks. For heavy-duty engines, EPA approved a maintenance interval equal to the range (in miles or hours) of the vehicle operation that is no less than the vehicle's fuel capacity (i.e., a 1:1 ratio) for vocational vehicles such as dump trucks, concrete mixers, refuse trucks and similar typically centrally fueled applications. For all other vehicles equipped with a constantly viewable DEF level indicator (e.g. a gauge or other mechanism on the dashboard that will notify the driver of the DEF fill level and the ability to warn the driver of the need to refill the DEF tank before other inducements occur), EPA approved a DEF tank refill interval equal to no less than twice the distance provided by the vehicle's fuel capacity (i.e., a 2:1 ratio). For all other vehicles that did not have a constantly viewable DEF level indicator, EPA approved a DEF tank refill interval equal to no less than three times the range of the vehicle's fuel capacity (i.e., a 3:1 ratio).
After the first year, engine and vehicle manufacturers provided additional requests for new maintenance intervals for vehicles and engines in model years not covered by the November 9, 2009
In addition to the approvals for highway engines, EPA also established a similar approach for nonroad engines. During EPA's July 26, 2011, webinar workshop for NRCI engine manufacturers, EPA discussed the issue of maintenance intervals for the refill of DEF and instructed manufacturers to follow the regulatory provisions in order to petition EPA for what it thought were appropriate intervals.
. . . believes that SCR systems are a new technology and are properly considered a critical emission-related component. EPA believes the existing allowable schedule maintenance mileage intervals applicable to catalytic converters are generally applicable to SCR systems which contain a catalyst, but that the SCR systems are a new type of technology and that DEF refills are a new type of maintenance uniquely associated with SCR systems. Therefore, the 3,000 hour (engines below 130 kW) and 4,500 hour (engines at or above 130kW) intervals are generally applicable to SCR systems. As noted, the SCR systems are a new type of technology designed to meet the newest emission standards and the DEF refill intervals represent a new type of scheduled maintenance; therefore, EPA believes that manufacturers may request from EPA the ability to perform the new scheduled maintenance of DEF refills.
EPA established a minimum maintenance interval for refill of NRCI DEF tanks, requiring that it be no less than the range in operating hours provided by the equipment's fuel capacity (i.e., a 1:1 engine-hour ratio of DEF refill to fuel refill).
All engines that have received approval for DEF refill maintenance intervals have been equipped with engine design elements to ensure that the DEF will be refilled in use. These design elements generally include warning lights, possible engine power derate, and possible engine shutdown for operation without DEF. This action does not change the need for such design elements.
In the NPRM published June 8, 2012 (77 FR 34149), EPA proposed to codify into the regulations the minimum DEF refill intervals being applied under the most recent administrative approvals (see previous section). However, we requested comment on the possibility of shorter intervals.
Commenters generally supported the proposal, and none argued to extend the minimum intervals beyond what was proposed. Moreover, none of the comments responding to EPA's request about shorter intervals expressed opposition to the possibility of shorter intervals. Most of the substantive comments on DEF refills were from engine and vehicle manufacturers, who generally asked for the following changes for the Final Rule:
• DEF refills for light-duty and light heavy-duty vehicles should be de-linked from oil change intervals.
• DEF refills for light-duty and light heavy-duty vehicles should be less than current recommended oil change intervals.
• The minimum DEF to fuel range ratio should be 1:1 for all heavy-duty motor vehicle engines.
The merits of these comments are discussed in the following sections. See the Summary and Analysis of Comments document in the rulemaking docket for a more complete discussion of the comments.
In this final action, EPA is adding DEF replenishment to the list of scheduled emission-related maintenance for diesel-fueled motor vehicles and motor vehicle engines, as well as for NRCI engines that use SCR, as proposed. These regulatory provisions are in 40 CFR 86.004-25(b)(4) and 40 CFR 86.1834-01(b)(4) for diesel-fueled motor vehicles and motor vehicle engines and 40 CFR 1039.125(a)(2) and (a)(3) for NRCI engines that use SCR. EPA is also incorporating appropriate maintenance intervals for this scheduled maintenance. Manufacturers complying with these new regulatory provisions will no longer be required to seek separate approval from EPA. The intervals being finalized are the same or shorter than those proposed, and are an outcome of the public comments we received following the proposal.
The comments emphasized the benefits of shorter minimum maintenance intervals, in particular the beneficial result that shorter intervals could have on the ability of manufacturers to comply with new standards related to greenhouse gases and fuel economy. Manufacturers also emphasized that the greater availability of DEF as well as design features used on current SCR-equipped vehicles and engines, including features that warn operators when DEF levels start to become low and reduce engine performance when DEF levels are very low or tanks are empty (“performance inducements”), make it highly likely that operators would refill their DEF tanks prior to DEF depletion.
We believe the general availability of DEF, along with current SCR engine design features, are sufficiently compelling reasons for EPA to finalize shorter DEF refill intervals than proposed. Longer intervals were previously approved, in part, due to concerns about operators' access to DEF as well as concerns that drivers were not yet familiar with this new maintenance practice. Now, design features such as performance inducements are sufficiently motivating operators to properly refill DEF, and DEF is easily obtainable. The final regulations do not change the current requirement that manufacturers employ the design features currently being used, or other methods with similar effectiveness, to ensure that DEF tanks are not likely to be depleted in use. The final regulations identify DEF refill as essential emission-related maintenance, which requires manufacturers to show that the maintenance is likely to be performed in use. Moreover, EPA has identified DEF tank level as a potentially adjustable parameter, and has provided guidance for manufacturers to show that they meet the regulatory requirement to ensure that DEF tank levels outside the acceptable range are unlikely to occur on in-use vehicles or engines, including discussion of the design features currently being used.
EPA also notes that the regulations will continue to allow any manufacturer to petition EPA under the “paragraph (b)(7) process” for a shorter maintenance interval than that promulgated for DEF refills if the manufacturer can show that a shorter interval is technologically necessary for the particular engine or vehicle configuration being certified.
While DEF replenishment will be treated similar to other allowable maintenance in most respects, there will be some differences. First, EPA will not restrict DEF refills for laboratory testing of engines to enable testers to use non-production DEF tanks and fuel tanks for testing. Since neither the DEF tank size nor the fuel tank size would affect measured emissions, it would be an unnecessary burden to place restrictions on tank size or refill rate during laboratory testing of engines (other than to require that the tanks be large enough for the test to be completed). Second, the highway and nonroad regulations both allow critical emissions-related maintenance to be performed if manufacturers can make one of several demonstrations to show that there is a reasonable likelihood the maintenance will be performed in use. For some of the possible demonstrations, we do not believe that the specified criteria are sufficiently robust for DEF replenishment, which is a critical element for the operation of the SCR system, and the 90% NO
• Showing that the maintenance is performed at least 80 percent of the time in use.
• Relying on visible signals.
• Providing the maintenance free of charge.
Therefore, we are stating in the regulations that those demonstrations are not sufficient for demonstration that DEF replenishment will occur in use. Unless we approve an alternate method, we will require that manufacturers demonstrate “a connection between emissions and vehicle performance such that as emissions increase due to lack of maintenance, vehicle performance will simultaneously deteriorate to a point unacceptable for typical driving.” This requirement generally reinforces EPA's current guidance requiring performance inducements when DEF levels become very low or tanks are empty. We note that while these specific provisions
For light-duty vehicles and light-duty trucks (LDVs and LDTs), we are adopting a minimum interval of 4,000 miles. Under the (b)(7) process, we typically had been requiring DEF refill intervals at least equal to the scheduled oil change interval for the vehicle, which is typically more than 4,000 miles. Thus, for LDVs and LDTs, the final regulations differ in two ways from the previous policy: The DEF refill interval is being
Regarding the first issue, manufacturer comments expressed the concern that tying DEF intervals to oil change intervals provides a disincentive to extend oil change intervals, and in fact, may create an incentive to actually shorten oil change intervals. Manufacturers were particularly concerned that the benefits of new automotive and motor oil technologies that allow consumers to drive for greater miles between oil changes would be reduced if mandated minimum DEF maintenance intervals are tied to oil change intervals. DEF maintenance intervals do not change as a result of the changes in technologies related to motor oil, so there would be a continuing mismatch between maintenance intervals. EPA agrees with manufacturers that longer oil change intervals are beneficial, in that they provide a cost savings for the consumer and generally also provide an environmental benefit by reducing the amount of waste oil generated.
In addition, one of the initial reasons for tying DEF refills to oil changes for light-duty vehicles as the new technology was introduced was to substantially increase the likelihood of proper refills for consumers who were unfamiliar with DEF. However, as SCR technology has become more conventional and DEF has become more available, operators are much more likely to be familiar with DEF. For those few who may be initially unfamiliar with the need to refill DEF, the warning lights and performance inducements will be sufficient to ensure proper refills. The second change from the prior policy is to set a 4,000 mile minimum interval, which will allow manufacturers to design their vehicles and engines for more frequent DEF refills than we have generally allowed to date. (Light-duty (b)(7) approvals have tied the DEF refill directly to the manufacturer's recommended oil change interval, which is typically 6,000 to 10,000 miles.) We are allowing this reduced maintenance interval to address manufacturer concerns about the size and weight of DEF tanks needed to achieve longer refill intervals, which could result in concerns with using limited packaging space, greater GHG emissions, and reduced fuel economy. Automobile manufacturers have stated that it takes approximately an 8 gallon DEF tank to assure the DEF will last for the length of a typical scheduled oil change interval. Requiring tanks this size may impede the space that is typical for the light-duty vehicle design and transportation needs of the consumer. Interior cabin volume and cargo space are highly valued attributes in light-duty vehicles and trucks. Manufacturers have historically strived to optimize these attributes, even to the point of switching a vehicle from rear-wheel drive to front-wheel drive to gain the extra interior cabin space taken up by where the drive shaft tunnel existed, or switching the size of the spare tire from a conventional sized tire to a small temporary tire to gain additional trunk space. Thus any significant interior, cargo or trunk space used to store a DEF tank would be unacceptable to customers. There are also packaging concerns with placing a large DEF tank in the engine compartment or in the vehicle's undercarriage. Most vehicle undercarriages are already crowded with the engine, exhaust system, including catalytic converters and mufflers, fuel tank, etc. limiting any available space for a DEF tank.
In addition to the practical impacts of devoting additional space to larger DEF tanks, the addition of the
Given the widespread retail availability of DEF and the inducements against operating the vehicle without DEF, we see little if any environmental benefit from requiring intervals greater than 4,000 miles.
To put this 4,000 mile interval in context, a vehicle with a 400 mile fuel range would need to refill the DEF tank no more frequently than every tenth fuel fill up. For operators who change oil every 7,500 miles and fill the DEF tank when they do, no more than one DEF refill would be needed between oil changes. We still believe it is necessary to require substantially longer DEF intervals for LDVs and LDTs than for commercial heavy-duty vehicles because of the wider range of usage patterns of light-duty vehicles. Most significantly, these light-duty vehicles are more likely to refuel at neighborhood refueling stations that may not have DEF. Ensuring that these vehicles can go through several tanks of fuel before needing to refill the DEF tanks reduces the likelihood that operators will allow the DEF tank to become completely empty.
EPA has treated heavy-duty complete trucks in the same manner as light-duty trucks; generally requiring DEF refill intervals approximately as long as oil change intervals. For the same reasons given above, we believe that tying DEF refills to oil changes is no more appropriate for complete heavy-duty pickups and vans than for LDVs or LDTs. Thus, the final regulations set the minimum DEF refill interval for complete heavy-duty pickups and vans to the same 4,000 mile level as for LDVs and LDTs.
EPA believes it is reasonable to base the DEF refilling intervals for heavy-duty on diesel refueling intervals (rather than oil change intervals or a specific number of miles) because DEF refill for heavy-duty trucks is most commonly undertaken at the time of fuel refill due to the DEF infrastructure, which has developed at diesel refueling stations, in particular, highway truck stops. For heavy-duty engines (other than those used in light heavy duty vehicles subject to the 4,000 mile interval), we are finalizing a DEF tank refill interval equal to the range (in miles) of the vehicle operation that is no less than that provided by the vehicle's fuel capacity (i.e., a 1:1 distance ratio). This is what we proposed for vocational vehicles such as dump trucks, concrete mixers, refuse trucks and similar typically centrally fueled applications. For all other vehicles, we proposed the DEF tank refill interval must provide a
To assist manufacturers in designing this minimum refill interval, EPA is requiring that designs be evaluated under operating conditions reasonably representing worst case conditions, so that a vehicle would not be expected to run out of DEF before running out of fuel. For example, if the highest rate of DEF consumption (relative to fuel consumption) will occur under highway driving conditions, the DEF tank should be large enough that a single tank of DEF would be enough to continue proper operation of the SCR system for whatever number of highway miles is possible with a single tank of fuel. Conversely, if the highest rate of DEF consumption (relative to fuel consumption) will occur under city or urban driving conditions, the DEF tank should be large enough that a single tank of DEF would be enough to continue proper operation of the SCR system for whatever number of city or urban miles is possible with a single tank of fuel. As an approximation, manufacturers may choose to consider the DEF to fuel consumption ratio as observed over the Supplemental Emissions Test (SET) and the transient Federal Test Procedure (FTP) cycles, as appropriate. Manufacturers may also consider other cycles if they are more appropriate.
EPA has determined that allowing for refilling of DEF at lower intervals than required for other scheduled maintenance is technologically necessary. As discussed in the notice of proposed rulemaking, EPA knows of no SCR technology for any heavy-duty engine application that is capable of operating in a practical way without a DEF refill for the high mileage levels associated with otherwise applicable aftertreatment maintenance intervals. Moreover, there are several factors that support allowing DEF refill intervals to be in the range of a single tank of fuel. Manufacturers report that vehicle operators generally have been refilling DEF at the same time and location that they refill the fuel tanks. Also, manufacturers have incorporated warning signals and performance-related inducements on their SCR-equipped vehicles to ensure the substantial likelihood that DEF refilling will occur, and there is considerable evidence that heavy-duty vehicle operators in the United States have in practice been refilling their DEF tanks prior to the tanks becoming empty in virtually all situations.
Prior to the NPRM, several manufacturers indicated that EPA should set the minimum required DEF refill interval at an interval equal to the range of distance provided by the vehicle's fuel tank (i.e., a 1:1 distance ratio) for all heavy-duty engines, not only those that are centrally-fueled.
Moreover, as commenters note, EPA has adopted new greenhouse gas standards for heavy-duty on-highway trucks,
EPA proposed to not allow 1:1 DEF intervals for heavy-duty engines that are not centrally fueled. EPA noted that manufacturers had not provided sufficient evidence that any change in the maintenance interval is necessary or appropriate throughout the heavy-duty engine category, rather than for particular applications. While we acknowledged that the warnings and inducements in place for failure to replenish DEF will restrict the ability of operators to run without DEF, EPA was concerned that DEF tank ratios of 1:1 may place a greater burden on the operator in terms of the frequency of DEF refills. However, we received no comments from operators to support our concern. We now believe this is an issue better left to market forces to address.
EPA is also incorporating minimum maintenance intervals for the scheduled maintenance of DEF refills on SCR-equipped NRCI engines. Specifically, we are finalizing the proposed 1:1 ratio (DEF tank range to fuel tank range), which is the same as was approved under the § 1039.125(a)(5) process. We received few comments on NRCI DEF refill rates, and those we did receive supported the proposed interval.
As noted in the NPRM, in evaluating minimum DEF refill intervals for NRCI engines, we took into consideration the space and weight constraints typically involved with the range of nonroad compression-ignition engines using SCR systems, including safety and impacts of weight and dosing rates on greenhouse gas emissions and fuel consumption. EPA also took into consideration the likelihood that the maintenance of DEF
As with heavy-duty highway engines, the performance inducements related to DEF tank levels make it virtually impossible for engines to operate without DEF. Moreover, the usage patterns for nonroad equipment make them sufficiently similar to centrally-fueled heavy-duty on-highway vehicles that we have a reasonable expectation that DEF tank refills will occur on a timely basis, just as we have observed with highway engines.
In the NPRM published on June 8, 2012 (77 FR 34149), EPA proposed revisions to allow general purpose nonroad engines to obtain temporary relief so that emission controls do not hinder the engine's performance in limited emergency situations. We believe that in such situations, temporary flexibilities are appropriate because the possibility of risk to human life would outweigh the temporary emissions increases that may occur if SCR-equipped engines are operated without emission controls. Our existing nonroad engine compliance regulations in 40 CFR 1068.101(b)(1)(ii) allow operators to temporarily disable or remove emission controls to address emergency situations, with a limited exemption from the prohibition that normally applies for tampering with certified engines.
We received public comments regarding the need for this temporary relief, the definition of emergency situation, the means of triggering the relief, and the duration of the allowed relief. Below, EPA describes the flexibilities that we are adopting for these engines, and the changes from the proposed rule that we have made to address the public comments. Commenters generally supported the proposal, and none argued against allowing such flexibility. Most of the substantive comments on these nonroad emergency AECDs were those of the engine manufacturers who asked for additional flexibility to improve the effectiveness of the allowance under actual emergency situations. See the Summary and Analysis of Comments document in the rulemaking docket for a more complete discussion of the comments.
EPA's Tier 4 NO
The consumable reductant in an SCR system is typically supplied as a solution of urea in water known as DEF. SCR-equipped engines generally include controls that limit the function of the engines if they are operated without urea, or if the engine's electronic control module (ECM) cannot otherwise confirm that the SCR system is properly operating. Such controls are generally called “inducements,” because they induce the operator to properly maintain the SCR emission control system. “Performance inducements” are inducements that affect performance of the engine, and do not include other inducements such as warning lights. EPA has provided information on aspects of SCR system maintenance that discusses possible warnings and other inducements that motivate an operator to ensure continued NO
While manufacturers have raised concerns primarily about SCR systems, it is also possible that other advanced emission controls, such as PM traps, could affect performance during emergencies. Since PM traps do not require any secondary fluid (like DEF), EPA did not anticipate that manufacturers would employ performance inducements to assure this technology would function properly in use. However, many manufacturers include engine-protection strategies for trap problems that can have effects on engine performance. While manufacturers have made great progress in eliminating trap-related performance issues, to whatever extent PM traps are used on nonroad engines, there is at least the possibility that they could lead to problems during emergencies.
For purposes of this rule, EPA proposed that an emergency situation would be one in which the functioning (or malfunctioning) of an engine's emission controls poses a significant risk to human life. Our proposal further explained that two rare conditions would have to be present for a situation to be the type of emergency where these provisions could apply. First, the engine would be needed to perform work related to reducing risk to human life. Second, the functioning (or malfunctioning) of an engine's emission control system would inhibit operation of the engine, and only a bypass of the normal emission controls would enable the equipment to continue operating temporarily to perform this emergency-related work. While SCR and PM trap systems for nonroad engines are designed to be hardy and robust in the wide range of possible operating environments for nonroad equipment, there is no guarantee that all of these sensors and system components will function properly at all times. In our
We received comments asking us to expand our definition of emergency situation to include cases where the emergency was indirectly related to a risk to human life, or where a delayed risk was posed, or where property, welfare, or national security was at risk. We agree there may be a reasonable use of this flexibility where the threat avoided by continued operation of the engine is indirectly tied to human life, such as providing temporary power to a 911 call center. In response to comments, we are adopting regulations that describe an emergency situation as one where the condition of an engine's emission controls poses a significant
The provisions we are adopting are intended primarily to address portable engines used for emergency backup power generation, flood control pumps, or in construction equipment (such as a bulldozer repairing a levee or a crane removing debris). For example, portable diesel-powered generators are often used to provide electrical power after natural disasters. If the generator is providing backup power to a medical facility during an emergency situation, then any interruption in service could risk the lives of the patients. Similarly, if a portable generator is providing backup power to a 911 call center during an emergency situation, then any interruption in service could indirectly pose a risk to human life. However, it is important to note that we are not limiting this flexibility to power generating units, flood control pumps, or construction equipment. These are just a few examples of how an ordinary piece of nonroad equipment could be used in an emergency situation.
While EPA proposed to apply this flexibility to nonroad engines, some commenters asked about the extent to which this allowance would apply for stationary engines. Currently, many NRCI engines are cross-certified for both nonroad (under 40 CFR part 1039) and stationary (under 40 CFR part 60) use because many of the requirements are the same, even though they are covered by different regulatory parts. However, EPA did not propose to apply this provision to stationary engines, and the legal requirements as well as the programmatic treatment of emergency situations, are different for stationary engines than for nonroad engines. Therefore, this final rule does not amend the regulations for stationary engines; dual certification will not be allowed for engines that include these emergency AECDs.
We are adopting a new section 1039.665 that specifies provisions allowing for AECDs that help to ensure proper function of engines and equipment in emergency situations. It is important to emphasize that EPA is confident that Tier 4 engines will function properly in the vast majority of emergency situations. Thus, we expect the AECDs allowed under this new provision will rarely be activated. We are adopting this provision merely as a precaution to ensure that emission controls do not put any person at risk during an emergency situation. The new regulations are clear that AECDs approved under this section are not defeat devices.
The proposed regulatory changes were intended to allow manufacturers to design into their nonroad engines a dormant AECD that could be activated during an emergency by contacting the engine manufacturer, including an engine dealership or service center. This AECD would act to suspend performance inducements or otherwise disable emission controls. Once active, the proposed AECD would have been allowed to function for 24 engine operating hours. Operators would have been allowed to reactivate the AECD by contacting the engine manufacturers again. The proposal also included reporting and recordkeeping requirements for operators and manufacturers.
In response to comments, we are finalizing the proposed allowance with some additional flexibility for manufacturers and operators. However, the basic structure remains the same as the proposed structure. The final rule allows EPA to certify a nonroad engine that contains a dormant but pre-armed AECD that can be activated for up to 120 engine hours per use during an emergency to prevent emission controls from interfering with engine operation. As proposed, we are finalizing a provision that enables manufacturers to offer, and operators to request, re-activations of this AECD for additional time in increments of 120 engine hours in cases of a prolonged emergency situation. Operators activating the AECD will be required to report the incident to the manufacturer, and manufacturers will submit an annual report to EPA summarizing the use of the AECD during the prior year. The Summary and Analysis of Comments document in the rulemaking docket provides a more complete discussion of changes from the proposed rule. The details of this allowance are described below.
The new section 1039.665 specifies provisions allowing for AECDs that are necessary to ensure proper function of engines and equipment in emergency situations. It also includes specific criteria that the manufacturer must meet to ensure that any adverse environmental impacts are minimized. These criteria are:
• The AECD must be designed so that it cannot be activated more than once without the specific permission of the certificate holder. Reactivation of the AECD must require the input of a temporary code or equivalent security feature.
• The AECD must become inactive within 120 engine hours of becoming active. The engine must also include a feature that allows the operator to deactivate the AECD once the emergency is over.
• The manufacturer must show that the AECD deactivates emission controls
• The engine controls must be configured to record in non-volatile electronic memory the total number of activations of the AECD for each engine.
• The manufacturer must take appropriate additional steps to induce operators to report AECD activation and request resetting of the AECD. We recommend including one or more persistent visible and/or audible alarms that are active from the point when the AECD is activated to the point when it is reset.
• The manufacturer must provide purchasers with instructions on how to activate the AECD in emergency situations, as well as information about penalties for abuse.
Approval of AECDs under the final regulations will also be based on a general criterion that the AECD be consistent with good engineering judgment. When used in our regulations, the phrase “good engineering judgment” has a specific meaning as described in 40 CFR 1068.5. By specifying that the AECD be consistent with good engineering judgment, we address unforeseen technical details that may arise.
Compared to the proposal, the provisions being finalized allow for AECD activation with less involvement from the manufacturer. First, under the final regulations, manufacturers may pre-arm the AECD so that operators can activate it initially without first contacting the manufacturer. Under the proposal, operators would have been required to contact the manufacturer to initially activate the AECD. Second, we are allowing the AECD to remain active for up to 120 hours instead of the proposed 24 hours. These two changes are the most significant changes from the proposal. Both of these changes reflect information received during the comment period that demonstrated the potential for delays in getting technical assistance from manufacturers during emergencies, especially for widespread events like hurricanes. Manufacturers indicated that for many engines (perhaps most engines) the type of initial activation envisioned in the proposal could not be done remotely. Our expectation was that operators would be able to activate the AECD by calling the manufacturer to obtain an activation code and then entering the code into the engine's onboard computer. However, manufacturers indicated that not all engines allow operators to interact with the onboard computer (other than to read trouble codes). Rather, for the engines without interactive control panels, it would be necessary for a technician to make a service call to activate the AECD. Even under the best circumstances, this could take a few hours. However, during a natural disaster, this could take several days. Information provided by manufacturers has demonstrated that in order to ensure that reduced performance related to emission controls does not create a significant risk to human life, the operator must be able to access the AECD without manufacturer involvement. We agree with the manufacturers' suggestion to allow initial arming of the AECD so that operators can activate it by taking a relatively simple action such as connecting a jumper in the wiring harness. Manufacturers do not disagree that rearming should require contacting the manufacturer.
It is also not clear that manufacturers will enable any of their engines to be rearmed remotely without a technician. Concerns about the potential for incorrect arming and/or abuse may lead manufacturers to require service calls even for engines that have interactive control panels that could theoretically be rearmed by entering a code provided by the manufacturer. Computer controls to enable remote rearming would need to be both reliable and secure, and manufacturers may determine that the developmental work necessary for this is not justified, given the small number of engines expected to actually activate the AECD even once.
Manufacturers also commented that in some emergencies, it could take several days before technicians could get to all engines needing service. In particular, manufacturers summarized their experience during Hurricane Sandy, which caused major damage in the northeastern United States, including damage to telecommunication, transportation, and power infrastructure. The combination of an increase in the number of engines requiring service (due in part to the number of backup generators being placed into long-term service) and the difficulty for technicians to travel to these engines scattered over such a large area caused long delays for operators needing service. In addition, manufacturers noted that the difficulty experienced by relief workers providing food and water to residents suggests the likelihood of delays in providing DEF for engines during major emergencies since the DEF infrastructure is far less developed than the food and water supply chain. For these reasons, manufacturers argued that limiting the AECD to 24 engine hours could result in engines shutting down before technicians could fix the engine or reset the AECDs. Based on their experience during Hurricane Sandy, manufacturers recommended extending this period to 120 engine hours. For backup generators that run continuously, this would allow manufacturers up to five days to reach each engines needing to have the AECD rearmed, and longer for engines running intermittently. We agree that limiting the AECD to 24 hours of operation would be insufficient to ensure that emission controls do not inhibit engine operation during prolonged disasters like hurricanes and major storms. Even two or three days may not be enough time to allow a storm to dissipate and roads to be cleared to the point where technicians could reach every engine needing emergency service. In response to this new information, we believe it is prudent to extend this allowance to 120 engine hours, which is equivalent to five operating days for engines running continuously.
We are also adopting two related provisions directed to manufacturers to minimize any abuse of this expended allowance. First, we are requiring manufacturers to include a method of deactivating the AECD after emergencies of short duration. This was not essential under the proposed approach because the AECD would deactivate itself after 24 engine hours. However, now the AECD can remain active for up to 120 engine hours, which could easily be longer than the actual emergency condition. Thus it is necessary to have some way for the operator to deactivate the AECD. Second, we are requiring the manufacturer to take appropriate additional steps to motivate operators to report AECD activation, at which time they may request resetting of the AECD. For example, a manufacturer could include persistent visible and/or audible alarms that are active from the point when the AECD is activated to the point when it is reset. We are also recommending that manufacturers add a secondary time limit for operation in which the AECD is deactivated before the 120-hour time limit is reached. Such a limit could be based on either on a set number of days (for engines that can track time when the engine is not running) or total engine hours including engine hours for which the AECD is not active.
We are addressing such AECDs as part of engine certification and will only authorize the certifying manufacturer to
Manufacturers may ask for approval at any time. Still, we encourage manufacturers to obtain preliminary approval before submitting an application for certification. Otherwise, our review of the AECD, which may include many unique features, may delay the approval of the application for certification.
The manufacturer is required to keep records to document requests for and use of emergency AECDs under this section and submit a report to EPA within 90 days of the end of each calendar year in which it authorizes use of the AECD.
Operators who purchase equipment with this dormant feature will receive instructions on how to activate the AECD in emergency situations, as well as information about penalties for abuse. EPA would consider appropriate use of this feature to be during a situation where operation of a nonroad engine or equipment is needed to protect human life (or where impaired operation poses a significant direct or indirect risk to human life), and obtaining short-term relief from emission controls enables full operation of the equipment. EPA is adopting this provision to give operators the means to obtain short-term relief one time without the need to contact the manufacturer or EPA. In virtually any true emergency situation, delaying the activation to obtain approval could put lives at risk, and would be unacceptable. However, EPA retains the authority to evaluate, after the fact, whether it was reasonable to judge that there was a significant risk to human life to justify the activation of the AECD. Where we determine that it was not reasonable to judge (1) that there was a significant risk to human life; or (2) that the emission control strategy was curtailing the ability of the engine to perform, the operator may be subject to penalties for tampering with emission controls. The operator may also be subject to penalties for tampering if he continues to operate the engine with the AECD once the emergency situation has ended or the problem causing the emission control strategy to interfere with the performance of the engine has been or can reasonably be fixed. Nevertheless, we will consider the totality of the circumstances when assessing penalties, and retain discretion to reduce penalties where we determine that an operator acted in good faith. In addition, failure of an operator to notify the manufacturer as required by the regulations can also subject the operator to penalties for tampering.
We are finalizing operator requirements largely as proposed. The primary difference between the proposal and FRM is that, as a result of the longer period of time permitted for use of the AECD, we have added a specific prohibition on operating the engine with the AECD beyond the time reasonably needed for such operation. In addition, we have extended the deadline for operators to fully report the AECD activation to the manufacturer. The deadline was 30 calendar days from the incident under the proposal, but is 60 calendar days from the incident (from the day the AECD is first activated) under the final regulations due to concerns about operators' ability to gather the necessary information during the aftermath of a major emergency. If any consecutive re-activations occur, this report is due 60 calendar days from the first activation. The report must include:
• Contact information.
• A description of the emergency situation, including its duration, and supporting information.
• The reason for the activation of the AECD during the emergency situation. For example, lack of DEF or the failure of an emission-related sensor when the engine was needed to respond to an emergency situation.
• Contact information for an official capable of verifying the conditions of the emergency situation (such as a county sheriff, fire marshal, or hospital administrator).
• The engine serial number (or equivalent).
• A description of the extent and duration of the engine operation while the AECD was active, including steps taken to reduce the time of operation with the AECD.
While operators activating the AECD would be required to ultimately provide all of this information, they would be able to have the AECD reset simply by providing the contact information. Failure to provide this information to the manufacturer within the deadline would constitute a violation of the tampering prohibition.
On June 8, 2012, EPA published a direct final rule (DFR) for dedicated emergency vehicles, allowing engine manufacturers to request specific emission controls or settings, approved as Auxiliary Emission Control Devices (AECDs) for new engines, and Emergency Vehicle Field Modifications (EVFMs) for in-use engines that are installed in ambulances and fire trucks. EPA adopted that rule to enable these dedicated emergency vehicles with diesel engines to perform mission-critical life- and property-saving work without risk of losing power, speed or torque due to abnormal conditions of the emission control systems.
EPA received favorable and constructive comments on that DFR and the identical provisions published in the parallel notice of proposed rulemaking. Because EPA determined that none of the comments on the emergency vehicle provisions were adverse, the rule became effective August 7, 2012. We have considered all of the constructive comments received, and we are adopting some minor revisions in response to those comments.
In this action, EPA is revising the definition of emergency vehicle to allow for case-by-case review of applications for AECDs or EVFMs for vehicles in dedicated emergency service that are not ambulances or fire trucks. EPA is also modifying the definition of emergency equipment at 40 CFR 1039.801, clarifying the rule's application to nonroad engines and wildland fire apparatus.
In the June 2012 proposed rule, EPA requested comment on our definition of emergency vehicle, specifically whether we should include those equipped with heavy-duty diesel engines that serve other civilian rescue, law enforcement or emergency response functions. We specifically requested information regarding instances of such vehicles experiencing or risking loss of power, speed or torque due to abnormal conditions of the emission control system, and how that may inhibit mission-critical life- and property-saving work. EPA received comments requesting an expansion of the definition of emergency vehicle to include search and rescue trucks, command and communication apparatus, law enforcement vehicles, or other vocational vehicles used for emergency response, but not directly associated with fire suppression or patient transport. In contrast, we received comments asking us to retain the current definition. We did not receive any specific evidence that any of these other vehicles have experienced in-use DPF regeneration difficulties or have duty cycles similar to fire trucks and ambulances. Therefore, EPA is not able to directly expand the AECDs and
Specifically, if an engine manufacturer wishes to receive EPA's approval to install an emergency vehicle AECD in a vehicle other than a fire truck or ambulance, then the manufacturer must demonstrate that the vehicle will regularly be used in emergency situations, and that the functioning or malfunctioning of its standard emission control system may prevent the vehicle from performing as necessary when the vehicle is needed to perform work related to reducing risk to human life.
Where we determine that a new vehicle meets these criteria, the manufacturer may submit an application for an emergency vehicle AECD, subject to review and approval under 40 CFR 86.094-21(b). Where we determine that an in-use vehicle other than a fire truck or ambulance meets the above criteria, a manufacturer may apply for, and EPA may approve, an EVFM for that vehicle, subject to review and approval under 40 CFR 85.1716.
In the DFR, EPA explained that, with our definition of emergency vehicle, it was EPA's intent to include vehicles that are purpose-built and exclusively dedicated to firefighting, emergency/rescue medical transport, and/or performing other rescue or emergency personnel or equipment transport functions related to saving lives and reducing injuries coincident with fires and other hazardous situations.
However, in this final rule EPA is allowing for case-by-case review of applications for AECDs or EVFMs for vehicles that EPA determines will be used in emergency situations where emission control function or malfunction may cause a significant risk to human life. With this revision, it is EPA's intent to include other vehicles that will regularly be used for firefighting, emergency/rescue medical transport, and/or performing other public safety, rescue or emergency personnel or equipment transport functions related to saving lives and reducing injuries coincident with fires and other hazardous situations where the manufacturer can make the requisite showing. The Summary and Analysis of Comments document in the rulemaking docket provides a more detailed discussion of the comments received and our rationale for the changes adopted.
In the direct final rule, EPA adopted provisions for emergency equipment similar to those adopted for fire trucks and ambulances, where manufacturers of nonroad engines powering equipment in dedicated emergency service could apply for, and EPA could approve, AECDs or field modifications to prevent the equipment from losing speed or power due to abnormal conditions of the emission control system, or in terms of preventing such abnormal conditions from occurring during operation related to emergency response. EPA received comments requesting a clarification or expansion of the definition of emergency equipment to include wildfire suppression dozers and dozer transport trucks. We also received comments asking us to retain the current definition. EPA understands that this rule may have had the unintended effect of unduly alarming some equipment operators. EPA has received no information with examples of any in-use nonroad dedicated emergency equipment having reduced performance due to the emission control system. We adopted these provisions as a precaution in the event that regulatory flexibilities are needed in the future.
Under the regulations published in the DFR, EPA believes that, under the current definition of emergency equipment, EPA may approve requests from manufacturers for AECDs and emergency equipment field modifications (EEFMs) for dedicated fire plows, which are specialty bulldozers designed to assist in suppression of wildfires. This is because we defined emergency equipment to include wildland fire apparatus, which includes “any apparatus . . . designed primarily to support wildland fire suppression operations.”
Since publication of the proposed rule, we have learned from stakeholders that the term “wildland fire apparatus” includes trucks typically registered as motor vehicles, which would be covered under our definition of emergency vehicle and the provisions of 40 CFR part 86, rather than part 1039. Therefore in this action we are revising the definition of emergency equipment to exclude any wildland fire apparatus or aircraft rescue/fire apparatus that are registered as motor vehicles, as they are covered separately under our on-highway provisions. In response to comments, we are revising the definition to include any other equipment that is used in regular emergency service where it has a demonstrated need for power to perform work directly related to protecting human life, and where the functioning or malfunctioning of its standard emission control system may prevent the equipment from performing as necessary when the equipment is needed to perform such work. Because we are making revisions in response to comments, we are taking this opportunity to also add clarifying regulatory text regarding coverage of fire plows. The Summary and Analysis of Comments document in the rulemaking docket provides a more detailed discussion of the comments received and our rationale for the changes adopted.
EPA expects the economic effects of this action to be small, and to potentially have benefits that are a natural result of easing constraints.
Due to the optional and voluntary nature of the emergency vehicle provisions, there are no mandatory direct regulatory compliance costs to engine manufacturers. To the extent manufacturers elect to develop and deploy upgrades to engines for emergency vehicles, they may voluntarily incur some degree of costs.
Because this revision further eases constraints on which vehicles may benefit from these provisions, the economic impacts can only improve with this action. It is presumed that the benefits to society of enabling first responders to act quickly when needed outweigh the costs to society of any temporary increase in emissions from this small segment of vehicles.
This action adopts minimum maintenance intervals that may be exceeded without preauthorization. No new regulatory burdens are being imposed. EPA is providing regulatory certainty that will allow affected manufacturers to plan their product development accordingly.
EPA expects the economic effects of this final rule to be small, and to potentially have benefits that are a natural result of easing constraints. Due to the optional and voluntary nature of this action, direct regulatory compliance costs would only be incurred by engine
We expect any environmental impacts from these revisions will be small. By promulgating these amendments, it is expected that the emissions from this segment of the heavy-duty fleet will not change significantly.
EPA believes that any change in the incidence of emissions-related maintenance occurring in use as a result of this action will not have an effect on emissions. Therefore, there are no anticipated adverse environmental impacts.
EPA does not expect any significant environmental effects as a result of this final rule. This option will be activated rarely (or perhaps not at all) and will only affect emissions for a very short period.
On May 23, 2012, the EPA Administrator signed a Notice of Proposed Rulemaking (NPRM) for the Emergency Vehicle and SCR Maintenance rule. Also on May 23, the NPRM was posted on EPA's Web site. Also on that day, EPA contacted interested stakeholders by phone and email, notifying them of the availability of this material for review and comment. On June 8, 2012, the NPRM was published in the
EPA received several comments that did not result in a regulatory change, and that have not otherwise been described in this preamble. In the Summary and Analysis of Comments, EPA addresses these other comments, including comments about the degree of relief offered by the emergency vehicle AECDs and the timing of the AECD approval process.
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).
The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them. OMB has previously approved the information collection requirements contained in the existing regulations under the provisions of the
The information collection described in this rule is recordkeeping and reporting pertaining to instances of use of a voluntary flexibility provision for nonroad engines. The Agency wishes to track use of this provision, as well as have access to information that can help identify fraudulent use. Engine owners or operators would report information directly to engine manufacturers within a short period after use of this provision, and engine manufacturers would report a summary of this information to EPA on an annual basis. If owners or operators do not report the requested information to manufacturers, they may not retain access to this flexibility provision and may be in violation of the regulations. Section 208(a) of the CAA requires that engine manufacturers provide information the Administrator may reasonably require to determine compliance with the regulations; submission of the information is therefore required to obtain or retain a benefit. We will consider confidential all information meeting the requirements of section 208(c) of the CAA.
The information that is subject to this collection would be collected whenever an equipment operator activates an engine feature that disables emission controls or performance inducement features associated with emission controls. The burden to the manufacturers affected by this rule is hard to estimate because this provision would only be lawfully activated during an emergency situation in the rare instances when the engine's emission controls or performance inducement features may cause a significant risk to human life. It is therefore estimated that, in any given year, this collection may affect approximately 12 engine manufacturers, reporting to EPA summaries representing 100 individual instances of use of this provision. We estimate the total burden associated with this rule is 110 hours annually (See Table VIII-1). This estimated burden for engine manufacturers is a total estimate for new reporting requirements. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9. When this ICR amendment is approved by OMB, the Agency will publish a technical
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 Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business primarily engaged in shipbuilding and repairing as defined by NAICS code 336611 with 1,000 or fewer employees (based on Small Business Administration size standards); (2) a small business that is primarily engaged in freight or passenger transportation on the Great Lakes as defined by NAICS codes 483113 and 483114 with 500 or fewer employees (based on Small Business Administration size standards); (3) a small business primarily engaged in commercial and industrial machinery and equipment repair and maintenance as defined by NAICS code 811310 with annual receipts less than $7.5 million (based on Small Business Administration size standards); (4) 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 (5) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this final rule on small entities, I certify that rule 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 final rule revises regulatory relief provided in the direct final rule for emergency vehicles and provides regulatory certainty related to engine and vehicle maintenance. As such, we anticipate no costs and therefore no regulatory burden associated with this rule. We have concluded that this rule will not increase regulatory burden for affected small entities.
This final rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act (UMRA) for State, local, or tribal governments. The rule imposes no enforceable duty on any State, local or tribal governments. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. The agency has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for the private sector in any one year. Manufacturers have the flexibility and will likely choose whether or not to use optional AECDs based on their strategies for complying with the applicable emissions standards. Similarly, manufacturers may choose to use DEF maintenance intervals longer than the minimums adopted in this action, and manufacturers may elect to use SCR strategies that consume lower amounts of DEF. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This final action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule will apply to manufacturers of heavy-duty diesel engines and not to state or local governments. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will be implemented at the Federal level and will impose compliance costs only on affected engine manufacturers depending on the extent to which they take advantage of the flexibilities offered. Tribal governments will be affected only to the extent they purchase and use vehicles with regulated engines. Thus, Executive Order 13175 does not apply to this final rule.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This final 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 EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials, specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental protection, Administrative practice and procedure, Confidential business information, Motor vehicle pollution, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Labeling, Penalties, Reporting and recordkeeping requirements, Warranties.
For the reasons set forth in the preamble, the Environmental Protection Agency amends title 40, chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401-7671q.
(1) It is an ambulance or a fire truck.
(2) It is a vehicle that we have determined will likely be used in emergency situations where emission control function or malfunction may cause a significant risk to human life. For example, we would consider a pickup truck that is certain to be retrofitted with a slip-on firefighting module to become an emergency vehicle, even though it was not initially designed to be a fire truck. Also, a mobile command center that is unable to manually regenerate its DPF while on duty could be an emergency vehicle. In making this determination, we may consider any factor that has an effect on the totality of the actual risk to human life. For example, we may consider how frequently a vehicle will be used in emergency situations or how likely it is that the emission controls will cause a significant risk to human life when the vehicle is used in emergency situations. We would not consider the pickup truck in the example above to be an emergency vehicle if there is merely a possibility (rather than a certainty) that the vehicle will be retrofitted with a slip-on firefighting module.
The revisions and additions read as follows:
(b) * * *
(4) For diesel-cycle heavy-duty engines, emission-related maintenance in addition to or at shorter intervals than the following specified values will not be accepted as technologically necessary, except as provided in paragraph (b)(7) of this section:
(v) For engines that use selective catalytic reduction, the diesel exhaust fluid (DEF) tank must be sized so that DEF replenishment can occur at an interval, in miles or hours of vehicle operation, that is no less than the miles or hours of vehicle operation corresponding to the vehicle's fuel capacity. Use good engineering judgment to ensure that you meet this requirement for worst-case operation. For example, if the highest rate of DEF consumption (relative to fuel consumption) will occur under highway driving conditions (characterized by the SET), the DEF tank should be large enough that a single tankful of DEF would be enough to continue proper operation of the SCR system for the
(6)(i) The following components are defined as critical emission-related components:
(H) Components comprising the selective catalytic reduction system (including DEF tank).
(I) Any other component whose primary purpose is to reduce emissions or whose failure would commonly increase emissions of any regulated pollutant without significantly degrading engine performance.
(ii) All critical emission-related scheduled maintenance must have a reasonable likelihood of being performed in-use. The manufacturer shall be required to show the reasonable likelihood of such maintenance being performed in-use, and such showing shall be made prior to the performance of the maintenance on the durability data engine. Critical emission-related scheduled maintenance items which satisfy one of the conditions defined in paragraphs (b)(6)(ii) (A)-(F) of this section will be accepted as having a reasonable likelihood of the maintenance item being performed in-use, except that DEF replenishment must satisfy paragraph (b)(6)(ii)(A) or (F) of this section to be accepted as having a reasonable likelihood of the maintenance item being performed in-use.
(i) You may disable any AECDs that have been approved solely for emergency vehicle applications under paragraph (4) of the definition of “Defeat device” in § 86.004-2. The emission standards do not apply when any of these AECDs are active.
(1) For the greenhouse gas emission standards in § 86.1818,
(2) For the OBD requirements in § 86.1806, emergency vehicle means a motor vehicle manufactured primarily for use in medical response or for use by the U.S. Government or a State or local government for law enforcement or fire protection.
(3) For other provisions under this subpart,
(i) An ambulance or a fire truck; or
(ii) A vehicle that we have determined will likely be used in emergency situations where emission control function or malfunction may cause a significant risk to human life. For example, we would consider a pickup truck that is certain to be retrofitted with a slip-on firefighting module to be an emergency vehicle, even though it was not initially designed to be a fire truck. Also, a mobile command center that is unable to manually regenerate its DPF while on duty could be an emergency vehicle. In making this determination, we may consider any factor that has an effect on the totality of the actual risk to human life. For example, we may consider how frequently a vehicle will be used in emergency situations or how likely it is that the emission controls will cause a significant risk to human life when the vehicle is used in emergency situations. We would not consider the pickup truck in the example above to be an emergency vehicle if there is merely a possibility (rather than a certainty) that the vehicle will be retrofitted with a slip-on firefighting module.
The revisions and additions read as follows:
(b) * * *
(4) For diesel-cycle vehicles, emission-related maintenance in addition to, or at shorter intervals than the following will not be accepted as technologically necessary, except as provided in paragraph (b)(7) of this section:
(iii) For vehicles that use selective catalytic reduction, the replenishment of diesel exhaust fluid shall occur at an interval that is no less than 4,000 miles for typical operation.
(6) * * *
(i) * * *
(H) Components comprising the selective catalytic reduction system (including diesel exhaust fluid tank).
(I) Any other component whose primary purpose is to reduce emissions or whose failure would commonly increase emissions of any regulated pollutant without significantly degrading engine performance.
(ii) All critical emission-related scheduled maintenance must have a reasonable likelihood of being performed in-use. The manufacturer shall be required to show the reasonable likelihood of such maintenance being performed in-use, and such showing shall be made prior to the performance of the maintenance on the durability data vehicle. Critical emission-related scheduled maintenance items which satisfy one of the conditions defined in paragraphs (b)(6)(ii) (A) through (F) of this section will be accepted as having a reasonable likelihood of the maintenance item being performed in-use, except that DEF replenishment must satisfy paragraph (b)(6)(ii)(A) or (b)(6)(ii)(F) of this section to be accepted as having a reasonable likelihood of the
42 U.S.C. 7401-7671q.
(a) * * *
(1) You demonstrate that the maintenance is reasonably likely to be done at the recommended intervals on in-use engines. We will accept scheduled maintenance as reasonably likely to occur if you satisfy any of the following conditions, with the exception that paragraphs (a)(1)(ii) and (iii) of this section do not apply for DEF replenishment:
(2) * * *
(iii) For SCR systems, the minimum interval for replenishing the diesel exhaust fluid (DEF) is the number of engine operating hours necessary to consume a full tank of fuel based on normal usage starting from full fuel capacity for the equipment. Use good engineering judgment to ensure that equipment manufacturers will meet this requirement for worst-case operation by following your installation instructions. For example, if your highest rate of DEF consumption (relative to fuel consumption) will occur under a steady state operating conditions characterized by one of the modes of the applicable steady-state certification test (to the extent that continuous operation at such mode is representative of real-world conditions), the DEF tank should be large enough that a single tank of DEF would be enough to continue proper operation of the SCR system for the expected operating range with a single tank of fuel at that mode. For engine testing in a laboratory, any size DEF tank and fuel tank may be used; however, for our testing of engines, we may require you to provide us with a production-type DEF tank, including any associated sensors.
(3) * * *
(iii) The provisions of paragraph (a)(2)(iii) of this section apply for SCR systems.
(b) * * *
(3) Describe the instructions needed to properly install the exhaust system and any other components. Include instructions consistent with the requirements of § 1039.205(u). Also describe how to properly size the DEF tank consistent with the specifications in § 1039.125(a), if applicable.
(c) * * *
(15) For engines with one or more approved auxiliary emission control devices for emergency equipment applications under § 1039.115(g)(4), the statement: “THIS ENGINE IS FOR INSTALLATION IN EMERGENCY EQUIPMENT ONLY.” Note that this label requirement does not apply for engines that include emergency AECDs under § 1039.665 rather than § 1039.115(g)(4).
(g) You may disable any AECDs that have been approved solely for emergency equipment applications under § 1039.115(g)(4). The emission standards do not apply when any of these AECDs are active.
This section specifies provisions that allow for temporarily disabling emission controls during qualified emergency situations. For purposes of this section, a qualified emergency situation is one in which the condition of an engine's emission controls poses a significant direct or indirect risk to human life. An example of a direct risk would be an emission control condition that inhibits the performance of an engine being used to rescue a person from a life-threatening situation. An example of an indirect risk would be an emission control condition that inhibits the performance of an engine being used to provide electrical power to a data center that routes “911” emergency response telecommunications.
(a)
(b)
(1) The AECD's design must be consistent with good engineering judgment and the manufacturer must show that the AECD deactivates emission controls only to the extent necessary to address the expected emergency situation.
(2) Manufacturers must discourage improper activation of the AECD by displaying information where it is clearly visible to the equipment operator when the operator is in a position to activate the AECD. Unless we approve alternate language, state the following: “EMERGENCY USE ONLY. SEE OWNERS MANUAL. PENALTIES APPLY FOR MISUSE.”
(3) Manufacturers may design and produce their engines with the AECD initially armed to allow operators to activate the AECD one time per engine
(4) Except as allowed by paragraph (b)(3) of this section, AECD activation must require either input of a temporary code, reconfiguration of the engine's electronic control module by a qualified service technician, or an equivalent security feature that is unique to each engine.
(5) The engine controls must be configured to record the total number of AECD activations in that engine's nonvolatile electronic memory.
(6) The engine controls must include an operator-activated switch or other element of design to allow the operator to manually deactivate the AECD once a qualified emergency situation has ended. This manual control may include a “confirm-delete” function, as needed, to prevent unintentionally deactivating the AECD. This control may allow for manual reactivation of the AECD provided that the AECD's automatic deactivation limits in paragraph (b)(7) of this section have not yet been reached, but such reactivation by operators would be allowed only under emergency situations. This manual deactivation control must not deactivate operator inducements required by paragraph (b)(9) of this section.
(7) The AECD must automatically deactivate within a cumulative engine run time of 120 hours after the AECD was initially activated (excluding any time the AECD was deactivated). The AECD may be subsequently reset as specified in paragraph (b)(8) of this section. For emission controls that involve a sequence of increasingly severe engine performance limits to induce operators to perform emission-related maintenance, the emission controls may be reset to the initial point of that sequence when the AECD is deactivated.
(8) The manufacturer must ensure that resetting the AECD cannot occur without the manufacturer's specific permission, and that resetting the AECD requires either input of a temporary code, reconfiguration of the engine's electronic control module by a qualified service technician, or an equivalent security feature that is unique to each engine. AECD resets may not occur unless either the manufacturer has evidence that the emergency situation is continuing or the operator provides the information required in paragraph (e) of this section, in writing or by any other means.
(9) The manufacturer must take appropriate additional steps to induce operators to report AECD activation and request resetting the AECD. We recommend including one or more persistent visible and/or audible alarms that are active from the point when the AECD is activated to the point when it is reset.
(c)
(1) Instructions for activating, deactivating, and reactivating the AECD; reporting AECD use; and requesting AECD resets.
(2) A warning that federal regulations prohibit activating the emergency AECD for something other than a qualified emergency situation, failing to disable the emergency AECD after a qualified emergency situation ends, and failing to notify the manufacturer and send reports as required under paragraph (e) of this section. The warning must also identify the maximum civil penalty for such violations as described in 40 CFR 1068.101.
(3) Notification that the manufacturer will send the information from the operator's report under paragraph (e) of this section to EPA and that federal regulation separately prohibits submitting false information.
(d)
(e)
(1) Contact name, mail and email addresses, and telephone number for the responsible company or entity.
(2) A description of the emergency situation, the location of the engine during the emergency, and the contact information for an official who can verify the emergency situation (such as a county sheriff, fire marshal, or hospital administrator).
(3) The reason for AECD activation during the emergency situation, such as the lack of DEF, or the failure of an emission-related sensor when the engine was needed to respond to an emergency situation.
(4) The engine's serial number (or equivalent).
(5) A description of the extent and duration of the engine operation while the AECD was active, including a statement describing whether or not the AECD was manually deactivated after the emergency situation ended.
(f)
(g)
(1) Activating the emergency AECD for any use other than a qualified emergency situation where the emission control strategy would curtail engine performance.
(2) Failing to disable the emergency AECD after a qualified emergency situation has ended.
(3) Failing to disable the emergency AECD after the problem causing the emission control strategy to interfere with engine performance has been or can reasonably be fixed.
(4) Failing to provide the information required under paragraph (e) of this section within 60 days of AECD activation.
(h)
(i)
(j)
(k)
(b) Include in your notification a full description of the EEFM and any documentation to support your determination that the EEFM is necessary to prevent the equipment from losing speed, torque, or power due to abnormal conditions of its emission control system during operation related to emergency response, or to prevent such abnormal conditions from occurring during operation related to emergency response. Examples of such abnormal conditions may include excessive exhaust backpressure from an overloaded particulate trap, or running out of diesel exhaust fluid (DEF) for engines that rely on urea-based selective catalytic reduction. Your determination must be based on an engineering evaluation or testing or both.
(c) * * *
(3) * * *
(ii) We will deny your request if we determine that the EEFM is not necessary to prevent the equipment from losing speed, torque, or power due to abnormal conditions of the emission control system during operation related to emergency response, or to prevent such abnormal conditions from occurring during operation related to emergency response.
(1) Specialized vehicles used to perform aircraft rescue and/or fire-fighting functions at airports, with particular emphasis on saving lives and reducing injuries coincident with aircraft fires following impact, or aircraft ground fires.
(2) Wildland firefighting equipment designed primarily to support wildland fire suppression operations. For example, a bulldozer designed with special features for fighting wildfires would be a piece of emergency equipment.
(3) Any other equipment that we have determined will likely be used in emergency situations where emission control function or malfunction may cause a significant risk to human life. For example, we would consider nonroad equipment that is certain to be retrofitted with a slip-on firefighting module to be emergency equipment, irrespective of the equipment manufacturer's original design. In making this determination, we may consider any factor that has an effect on the totality of the actual risk to human life. For example, we may consider how frequently the equipment will be used in emergency situations or how likely it is that the emission controls will cause a significant risk to human life when the equipment is used in emergency situations. We will consider to what extent the flexibility provisions of § 1039.665 already address the risk. In the example above, we would not consider equipment to be emergency equipment if there is merely a possibility (rather than a certainty) that the equipment will be retrofitted with a slip-on firefighting module.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule; correction.
DoD, GSA, and NASA are issuing a correction to FAR Case 2012-014; Small Business Protests and Appeals (Item II), which was published in the
Mr. Karlos Morgan, Procurement Analyst, at 202-501-2364, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501- 4755. Please cite FAC 2005-76, FAR Case 2012-014; Correction.
DoD, GSA, and NASA published a document in the
In rule FR Doc. 2014-17499 published in the
On page 43586, in the first column, section 19.307, section heading, correct “Protecting” to read “Protesting”.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This rule implements catch limits, commercial quotas, and possession limits for the spiny dogfish fishery for the 2014-2015 fishing years. The action was developed by the Mid-Atlantic and New England Fishery Management Councils pursuant to the fishery specification requirements of the Spiny Dogfish Fishery Management Plan. These management measures, including the increase in catch limits above the 2013 levels, are supported by the best available scientific information and reflect recent increases in spiny dogfish biomass, and are expected to result in positive economic impacts for the spiny dogfish fishery while maintaining the conservation objectives of the Spiny Dogfish Fishery Management Plan.
This rule is effective September 8, 2014.
Copies of the specifications, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the action are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The amendment is also accessible via the Internet at:
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is contained in the Classification section of this rule. Copies of the FRFA and the Small Entity Compliance Guide are available from the Regional Administrator, Greater Atlantic Regional Fisheries Office, NMFS, 55 Great Republic Drive, Gloucester, MA 01930, and are available via the Internet at:
Tobey Curtis, Fishery Policy Analyst, (978) 281-9273.
The Atlantic spiny dogfish (
This final rule implements specifications (i.e., annual catch limit (ACL), commercial quota, and possession limits) for the spiny dogfish fishery for the 2014 and 2015 fishing years, in accordance with the requirements of the Spiny Dogfish FMP. Proposed specifications published in the
Due to recent observed increases in spiny dogfish stock biomass, and based upon the recommendations of the Councils, the spiny dogfish ACLs and commercial quotas are being increased from 2013 levels (refer to the EA for more details; see
1. ACL of 60.695 million lb (27,531 mt) and pre-Research Set-Aside (RSA) commercial quota of 49.037 million lb (22,243 mt) for 2014 (+20 percent from 2013);
2. ACL of 62.270 million lb (28,245 mt) and pre-RSA commercial quota of 50.612 million lb (22,957 mt) for 2015 (+24 percent from 2013); and
3. A Federal spiny dogfish trip limit of 5,000 lb (2,268 kg).
The two Councils could not agree on the spiny dogfish trip limit for 2014-2015. The Mid-Atlantic Fishery Management Council recommended the status quo trip limit (4,000 lb (1,814 kg)), and the New England Fishery Management Council recommended no limits on the possession of spiny dogfish (due in part to significant under-harvest of the spiny dogfish quotas in recent years). Under the FMP, when the two Councils recommend different specification measures, NMFS has the discretion to implement any measure not specifically rejected by both Councils. In this case, NMFS may implement whatever trip limit is deemed the most appropriate based upon the advice of the Councils and public comments. In acknowledgement of the concerns of both Councils, as well as the input of the public, NMFS is implementing a modest increase in the spiny dogfish trip limit. The increase to 5,000 lb (2,268 kg) is expected to increase opportunities to land the abundant spiny dogfish resource without resulting in additional market instability or other potential economic impacts.
NMFS has approved and implemented Amendment 3 to the Spiny Dogfish FMP (July 15, 2014; 79 FR 41141), which becomes effective on August 14, 2014. Amendment 3 implemented an RSA program for the Spiny Dogfish FMP, in which up to 3 percent of the commercial quota may be set aside to support scientific research. Under the specifications implemented in this rule, the maximum available RSA amounts are 1.470 million lb (667 mt) for 2014, and 1.519 million lb (689 mt) for 2015. A total of 250,000 lb (113 mt) of spiny dogfish RSA has been awarded for 2014, leaving 48.787 million lb (22,129 mt) for the final 2014 commercial quota. Assuming the maximum available amount of RSA is awarded in 2015, the final commercial quota would be 49.093 million lb (22,268 mt). However, any unused portion of the 2015 spiny dogfish RSA will be reallocated to the 2015 commercial quota. Additionally, Amendment 3 removed the seasonal allocation of the spiny dogfish commercial quota. Therefore, these final specifications will apply to the spiny dogfish fishery on an annual, coastwide basis. However, the regional and state-by-state allocation of the spiny dogfish quota by the Commission may still affect Federal spiny dogfish vessels.
A total of 29 comments were received on the proposed rule from 22 individuals (predominantly fishermen from Massachusetts), 3 fishing industry organizations, 3 state agencies (Maine Department of Marine Resources, Massachusetts Division of Marine Fisheries, and the Rhode Island
As described above, NMFS proposed unlimited possession of spiny dogfish in the proposed rule, as recommended by the New England Fishery Management Council. Based upon public comments, this final rule changes the spiny dogfish possession limit to 5,000 lb (2,268 kg) per trip.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator determined that this rule is consistent with the Spiny Dogfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This action has been determined to be not significant for purposes of Executive Order (E.O.) 12866.
Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in support of this action. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' response to those comments, relevant analyses contained in the action and its EA, and a summary of the analyses completed to support the action in this rule. A copy of the analyses and the EA are available from the Council (see
A total of 29 comments were received on the proposed rule. For a summary of
This rule would impact fishing vessels that land spiny dogfish. In 2012, 2,666 commercial fishing vessels held spiny dogfish permits. However, not all of those vessels are active participants in the fishery; only 489 vessels landed spiny dogfish in 2012. Additionally, if two or more vessels have identical owners, these vessels are considered to be part of the same firm. When permit ownership data are considered, in 2012, 1,976 fishing firms held at least one spiny dogfish permit. According to the Small Business Administration (SBA), firms are classified as finfish or shellfish firms based on the activity from which they derive the most revenue. Using the $5.5M cutoff for shellfish firms (NAICS 114112) and the $20.5M cutoff for finfish firms (NAICS 114111), there are 1,953 directly regulated small entities and 23 directly regulated large entities. There are 488 active fishing firms, of which 482 are small entities and 6 are large entities. On average, for small entities, spiny dogfish is responsible for a small fraction of landings, and active participants derive a small share of gross receipts from the spiny dogfish fishery. While all 1,953 directly regulated small entities would be affected by these specifications, many of these small entities do not currently participate in this fishery and would be likely to experience only negligible economic impacts, if any.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This rule does not duplicate, overlap, or conflict with other Federal rules.
Three spiny dogfish management alternatives were analyzed for each year, 2014 and 2015. As described in the EA for this action (see
According to the analysis in the EA (see
Trip limits influence the rate of landings across the fishing year, and are not expected to result in direct positive or negative economic impacts on the fishery as a whole. While different trip limit alternatives may affect trip-level revenues, and have variable, short-term effects on price, total spiny dogfish revenues will still be largely influenced by the quota. The final trip limit implemented by this rule (5,000 lb (2,268 kg)) is a change from the proposed rule (unlimited possession) and acknowledges some of the potential minor economic impacts of unlimited possession, as described in the public comments (see Comments and Responses). Additionally, the Commission and individual states may implement various spiny dogfish trip limits in their state waters (current trip limits range from 4,000 lb (1,814 kg) to 10,000 lb (4,536 kg) per trip), which would effectively limit the allowable possession of spiny dogfish by Federal permit holders.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(a) * * *
(1) Possess up to 5,000 lb (2,268 kg) of spiny dogfish per trip; and
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meeting and availability of preliminary technical support document.
The U.S. Department of Energy (DOE) will hold a public meeting to discuss and receive comments on the preliminary analysis it has conducted for purposes of considering amended energy conservation standards for refrigerated beverage vending machines. The meeting will cover the analytical framework, models, and tools that DOE is using to evaluate potential amended and new standards for this equipment; the results of preliminary analyses performed by DOE for this equipment; the potential energy conservation standard levels derived from these analyses that DOE could consider for this equipment; and any other issues relevant to the development of amended energy conservation standards for refrigerated beverage vending machines. In addition, DOE encourages written comments on these subjects. To inform interested parties and to facilitate this process, DOE has prepared an agenda, a preliminary technical support document (TSD), and briefing materials, which are available on the DOE Web site at:
DOE will accept comments, data, and other information regarding this rulemaking before or after the public meeting, but no later than October 7, 2014. See section IV, “Public Participation,” of this notice of public meeting (NOPM) for details. DOE will hold a public meeting on September 16, 2014, from 9:00 a.m. to 5:00 p.m., in Washington, DC. Additionally, DOE plans to allow for participation in the public meeting via webinar.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room GH-019, 1000 Independence Avenue SW., Washington, DC 20585-0121. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE of this fact as soon as possible by contacting Ms. Brenda Edwards at (202) 586-2945 so that the necessary procedures can be completed. DOE requires visitors to have laptops and other devices, such as tablets, checked upon entry into the building. Please report to the visitor's desk to have devices checked before proceeding through security.
Interested persons may submit comments, identified by docket number EERE-2013-BT-STD-0022 and/or Regulation Identification Number (RIN) 1904-AD00, by any of the following methods:
•
•
•
•
The rulemaking Web page can be found at:
For detailed instructions on submitting comments and additional information on the rulemaking process, see section IV, “Public Participation,” of this document. For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Mr. Ron Majette, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 286-1692. Email:
Ms. Sarah Butler, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-1777. Email:
Title III, Part B
EPCA requires that, not later than 6 years after issuance of any final rule establishing or amending a standard, DOE publish a notice of proposed rulemaking (NOPR) proposing new standards or a notice of determination that the existing standards do not need to be amended. (42 U.S.C. 6295(m)(1))
EPCA provides criteria for prescribing amended and new energy conservation standards. More specifically, DOE is required to ensure that each standard: (1) Achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified; and (2) results in significant conservation of energy. (42 U.S.C. 6295(o)(2)(A) and (o)(3)(B)) EPCA also provides that in deciding whether a proposed standard is economically justified, DOE must, after receiving comments on the proposed standard, determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:
1. The economic impact of the standard on manufacturers and consumers of products subject to the standard;
2. The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products which are likely to result from the standard;
3. The total projected amount of energy savings likely to result directly from the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the standard;
5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
6. The need for national energy conservation; and
7. Other factors the Secretary of Energy considers relevant.
EPCA further provides that DOE may not prescribe an amended or new standard if the standard is likely to result in the unavailability in the United States in any covered equipment type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time that the standard is prescribed. (42 U.S.C. 6295(o)(4))
Before proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE will use to evaluate standards for the equipment at issue and the results of preliminary analyses DOE performed for the equipment. DOE publishes this notice announcing the availability of the preliminary technical support document (TSD), which details the preliminary analyses, discusses the comments DOE received from interested parties on the Framework Document, and summarizes the preliminary results of DOE's analyses. In addition, DOE is announcing a public meeting to solicit feedback from interested parties on its analytical framework, models, and preliminary results.
EPCA directed the Secretary to issue by rule, no later than August 8, 2009, energy conservation standards for refrigerated bottled or canned beverage vending machines. DOE began a rulemaking process in 2006 and in August 2009 published a final rule for beverage vending machines (henceforth referred to as the 2009 BVM final rule). 74 FR 44914 (Aug. 31, 2009). The entire rulemaking process that culminated with the publication of the 2009 BVM final rule will be referred to as the 2009 BVM rulemaking. The 2009 BVM final rule established energy conservation standards for beverage vending machines, with a compliance date of August 31, 2012. The 2009 BVM final rule document is currently available at
In initiating this rulemaking, DOE prepared a Framework Document, “Energy Conservation Standards Rulemaking Framework Document for Refrigerated Beverage Vending Machines,” which describes the procedural and analytical approaches DOE anticipates using to evaluate energy conservation standards for refrigerated beverage vending machines. DOE published a notice that announced both the availability of the Framework Document and a public meeting to discuss the proposed analytical framework for the rulemaking. That notice also invited written comments from the public. 78 FR 33262 (June 4, 2013). The Framework Document is available at:
DOE held a public meeting on June 20, 2013, at which it described the various analyses DOE would conduct as part of the rulemaking, such as the engineering analysis, the life-cycle cost (LCC) and payback period (PBP) analyses, and the national impact analysis (NIA). Representatives for manufacturers, environmental and energy efficiency advocates, and other interested parties attended the meeting.
Comments received since publication of the Framework Document have helped DOE identify and resolve issues related to the preliminary analyses. Chapter 2 of the preliminary TSD summarizes and addresses the comments received in response to the Framework Document.
For the refrigerated beverage vending machines covered in this rulemaking, DOE is both considering amending standards for equipment classes with current standards, as well as potentially establishing standards for covered equipment classes which do not currently have standards. DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) markups to determine equipment price; (3) energy use; (4) life-cycle cost and payback period; and (5) national impacts. The preliminary TSD that presents the methodology and results of each of these analyses is available at:
DOE also conducted, and has included in the preliminary TSD, several other analyses that support the major analyses or are preliminary analyses. These will be expanded upon for a notice of proposed rulemaking (NOPR), if DOE determines that amended energy conservation standards are technologically feasible, economically justified, and would save a significant amount of energy, based on the available information. These analyses include: (1) The market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the LCC and PBP analysis and the NIA. In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and has identified the methods to be used for the consumer subgroup analysis, the emissions analysis, the employment impact analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the NOPR.
The engineering analysis establishes the relationship between the cost and efficiency levels of the equipment that DOE is evaluating as potential energy conservation standards. This relationship serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the nation. The engineering analysis identifies representative baseline equipment, which is the starting point for analyzing technologies that provide energy efficiency improvements. “Baseline equipment” refers to a model or models having features and technologies typically found in minimally-efficient equipment currently available on the market and, for equipment already subject to energy conservation standards, models that just meet the current standards. After identifying the baseline models, DOE estimated manufacturer selling prices by using a consistent methodology and pricing scheme that includes material costs and manufacturer markups. Chapter 5 of the preliminary TSD discusses the engineering analysis.
DOE derives customer prices for equipment based on manufacturer markups, retailer markups, distributor markups, contractor markups (where appropriate), and sales taxes. In deriving these markups, DOE determines the major distribution channels for equipment sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline equipment (baseline markups) and higher-efficiency equipment (incremental markups). DOE calculates both overall baseline and overall incremental markups based on the markups at each step in each distribution channel. Chapter 6 of the preliminary TSD addresses the markups analysis.
The energy use analysis provides estimates of the annual energy consumption of refrigerated beverage vending machines. The energy use analysis seeks to estimate the range of energy consumption of the equipment that meets each of the efficiency levels considered in a given rulemaking as it is used in the field. DOE uses these values in the LCC and PBP analyses and in the NIA. Chapter 7 of the preliminary TSD addresses the energy use analysis.
The LCC and PBP analyses determine the economic impact of potential amended standards on individual consumers. The LCC is the total cost of purchasing, installing, and operating considered equipment over the course of its lifetime. The LCC analysis compares the LCCs of equipment designed to meet possible energy conservation standards with the LCC of the equipment likely to be installed in the absence of standards. DOE determines LCCs by considering: (1) Total installed cost to the purchaser (which consists of manufacturer selling price, distribution chain markups, sales taxes, and installation cost); (2) the operating cost of the equipment (energy cost, water and wastewater cost in some cases, and maintenance and repair cost); (3) equipment lifetime; and (4) a discount rate that reflects the real consumer cost of capital and puts the LCC in present-value terms. The PBP represents the number of years needed to recover the increase in purchase price (including installation cost) of higher-efficiency equipment through savings in the operating cost of the equipment. PBP is calculated by dividing the incremental increase in installed cost of the higher efficiency equipment, compared to the baseline equipment, by the annual savings in operating costs. Chapter 8 of the preliminary TSD addresses the LCC and PBP analyses.
The NIA estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from amended standards at specific efficiency levels (referred to as candidate standard levels). DOE calculated NES and NPV for each candidate standard level for refrigerated beverage vending machines as the difference between a base-case forecast (without amended standards) and the standards-case forecast (with standards). DOE determined national annual energy consumption by multiplying the number of units in use (by vintage) by the average unit energy consumption (also by vintage). Cumulative energy savings are the sum of the annual NES determined for the lifetime of the equipment shipped from 2019 to 2048 for all equipment classes. The analysis period is 30 years, which is consistent with other rulemakings and sufficiently long to cover the expected life of the equipment. The analysis period begins in 2019, the expected year of compliance with an amended standard. The national NPV is the sum over time of the discounted net savings each year, which consists of the difference between total operating cost savings and increases in total installed costs. Critical inputs to this analysis include shipments projections, estimated equipment lifetimes, equipment installed costs and operating costs, equipment annual energy consumption, the base-case efficiency projection, and discount rates. Chapter 10 of the preliminary TSD addresses the National Impact Analysis.
DOE invites input from the public on all the topics described above. The preliminary analytical results are subject to revision following further review and input from the public. A complete and revised TSD will be made available upon issuance of a NOPR. The final rule establishing any amended energy conservation standards will contain the final analytical results and will be accompanied by a final rule TSD.
DOE encourages those who wish to participate in the public meeting to obtain the preliminary TSD from DOE's Web site and to be prepared to discuss its contents. Once again, a copy of the preliminary TSD is available at:
Furthermore, DOE welcomes all interested parties, regardless of whether they participate in the public meeting, to submit in writing by October 7, 2014 comments, data, and information on matters addressed in the preliminary TSD and on other matters relevant to consideration of energy conservation standards for beverage vending machines.
The public meeting will be conducted in an informal, conference style. A court reporter will be present to record the minutes of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by United States antitrust laws.
After the public meeting and the closing of the comment period, DOE will consider all timely-submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses. Afterwards, the Department will publish either a determination that the standards for refrigerated beverage vending machines need not be amended or a NOPR proposing to amend those standards. The NOPR would include proposed energy conservation standards for the equipment covered by the rulemaking, and members of the public will be given an opportunity to submit written and oral comments on the proposed standards.
The time and date of the public meeting are listed in the
You can attend the public meeting via Webinar, and registration information, participant instructions, and information about the capabilities available to Webinar participants will be published on the following Web site:
The purpose of the meeting is to receive comments and to help DOE understand potential issues associated with this rulemaking. DOE must receive requests to speak at the meeting before 5:00 p.m. Tuesday, September 2, 2014. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting before 5:00 p.m. Tuesday, September 9, 2014.
Any person who has an interest in today's notice or who is a representative of a group or class of persons that has an interest in these issues may request an opportunity to make an oral presentation. Such persons may hand-deliver requests to speak, along with a computer diskette or CD in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format to Ms. Brenda Edwards at the address shown in the
Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE requests persons selected to be heard to submit an advance copy of their statements at least two weeks before the public meeting. At its discretion, DOE may permit any person who cannot supply an advance copy of their statement to participate, if that person has made advance alternative arrangements with the Building Technologies Office. The request to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the public meeting and may also employ a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA. (42 U.S.C. 6306). A court reporter will record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within DOE-determined time limits) prior to the discussion of specific topics. DOE will permit other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions from DOE and other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be posted on the DOE Web site and will also be included in the docket, which can be viewed as described in the Docket section at the beginning of this notice. In addition, any person may buy a copy of the transcript from the transcribing reporter.
DOE will accept comments, data, and other information regarding this rulemaking before or after the public meeting, but no later than the date provided at the beginning of this notice. Please submit comments, data, and other information as provided in the
Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) a date upon which such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
The Secretary of Energy has approved publication of this NOPM.
Environmental Protection Agency.
Proposed rule; reopening of the comment period.
The Environmental Protection Agency (EPA) is reopening the comment period for a proposed Clean Air Act rule published June 26, 2014. EPA solicited comment on whether events
Comments must be received on or before September 8, 2014.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2005-OH-0002, by one of the following methods:
1.
2.
3.
4.
John Summerhays, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067,
Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.
On June 27, 2005, EPA proposed to disapprove provisions relating to opacity limitations contained in an Ohio submittal dated June 4, 2003. EPA is evaluating the public comments received in response to the proposed disapproval. Given the passage of time,
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve four State Implementation Plan (SIP) revisions submitted by the State of Maine. These revisions establish Reasonably Available Control Technology (RACT) for two categories of volatile organic compound (VOC) sources and revise two existing VOC RACT regulations previously approved into Maine's SIP. The intended effect of this action is to propose approval of the requirements of the four submittals into the Maine SIP. This action is being taken under the Clean Air Act.
Written comments must be received on or before September 8, 2014.
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2014-0243 by one of the following methods:
1.
2.
3.
4.
5.
In addition, copies of the state's submittals are also available for public inspection during normal business hours, by appointment at the State Air Agency: Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017.
Anne K. McWilliams, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone (617) 918-1697, facsimile (617) 918-0697, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Organization of this document. The following outline is provided to aid in locating information in this preamble.
In 1997, EPA revised the health-based National Ambient Air Quality Standard (NAAQS) for ozone, setting it at 0.08 parts per million (ppm) averaged over an 8-hour time frame.
On April 20, 2004, pursuant to the Federal Clean Air Act (the Act, or CAA), 42 U.S.C. 7401
On March 27, 2008 (73 FR 16436), EPA issued a new 0.075 ppm 8-hour ozone NAAQS. Effective July 20, 2012 (77 FR 30088), EPA designated areas with respect to the 2008 ozone NAAQS. The entire state of Maine was designated unclassifiable/attainment for the 2008 ozone NAAQS.
Maine is part of the Ozone Transport Region (OTR) under Section 184(a) of the CAA. Sections 182(b)(2) and 184 of the CAA compel states with moderate and above ozone nonattainment areas, as well as areas in the OTR, respectively, to, among other things, submit a SIP revision requiring the implementation of RACT for all sources of VOC covered by a Control Techniques Guideline (CTG) issued by EPA and for all major sources of VOC. A CTG is a document which establishes a “presumptive norm” for RACT for a specific VOC source category.
On June 20, 2014 and October 26, 2011, the Maine Department of Environmental Protection (herein “ME DEP”) submitted revisions to its SIP containing new regulations to address two of EPA's CTG categories, Chapter 159 Control of Volatile Organic Compounds from Adhesives and Sealants (herein “Chapter 159”) and Chapter 154 Control of Volatile Organic Compounds from Flexible Package Printing (herein “Chapter 154”), respectively.
In addition, on October 13, 1999, ME DEP submitted revised Chapter 111 Petroleum Liquid Storage Vapor Controls (herein “Chapter 111”) and on February 26, 1998, revised Chapter 112 Bulk Terminal Petroleum Liquid Transfer Requirements (herein “Chapter 112”). Earlier versions of Chapters 111 and 112 had been previously approved by EPA into Maine's SIP.
Maine's Chapter 159 applies to the sale, use, and manufacturing for use in Maine of adhesives, sealants, adhesive primer, and sealant primer used in product manufacturing, packaging, construction, and installation of metal, wood, rubber, plastic, ceramic, or fiberglass materials. However, adhesives, sealant applications, and products used for the following operations are exempt from the Chapter 159: tire repair; repair and manufacturing of undersea-based weapon systems; testing and evaluation associated with research and development; solvent welding operations for medical devices; plaque laminating operations; products or processes subject to other state rules; and low-VOC products (less than 20 grams/liter).
Pursuant to Chapter 159, on or after January 1, 2011, all applicable sources are required to either limit VOC emissions through the use of adhesives, sealants, and adhesive and sealant primers which meet specified VOC limits or the use of add-on control equipment with an overall control efficiency of 85%, with the exception of roofing adhesives and sealants which have a compliance date of on or after January 1, 2016. The regulation specifies VOC limits for aerosol adhesives, clean-up solvents, and surface preparation solvents. In addition, the new regulation specifies applications methods, as well as work practices for waste and cleaning materials, to further limit VOC emissions for industrial adhesive activities.
Maine's Chapter 159 is generally consistent with the recommendations for RACT found in EPA's CTG for Miscellaneous Industrial Adhesives (EPA-453/R-08-005, September 2008) and a model rule developed by the Ozone Transport Commission (OTC) in 2007. The exemptions contained in Chapter 159 described above are consistent with those recommended in the CTG. Although there may be minor differences in the terminology used to describe certain adhesive categories regulated in the CTG and Chapter 159, EPA is proposing to find that those differences are inconsequential due to the Maine rule's broader applicability. Maine's Chapter 159 is more comprehensive than the CTG in that it establishes VOC content limits for sealants and sealant primers (in addition to adhesives as covered by the CTG), regulates sellers and manufactures, not just appliers, of regulated adhesives, adhesive primers and sealants, and contains a VOC composite vapor pressure limit for cleaning materials. Therefore, EPA is proposing to approve Chapter 159 and to find that the rule satisfies RACT requirements for this source category.
Maine's Chapter 154 applies to any flexible package printing press that has the potential to emit from a dryer, prior to controls, at least 25 tons per year of VOC from the use of inks, coatings and adhesives combined. On and after January 1, 2011, flexible package printing sources subject to the rule are required to limit VOC emissions by one or more of the following techniques: use of low VOC content materials; averaging of the VOC content materials to meet low-VOC content standards; or operating add-on VOC pollution control. The rule also contains recordkeeping, testing, and reporting requirements, as well as work practices for handling VOC-containing materials. Facilities with flexible package printing presses with a potential to emit of less than 25 tons per year of VOC from the use of inks, coatings and adhesives combined are only required to comply with the rule's recordkeeping and work practice requirements. Facilities with flexible package printing presses with a potential to emit of less than 25 tons per
Maine's Chapter 154 Flexible Package Printing rule is consistent with recommendations for RACT found in EPA's CTG for Flexible Package Printing (EPA-453/R-06-003, September 2006). Therefore, EPA is proposing to approve Chapter 154 and to find that Chapter 154 satisfies RACT requirements for this source category.
Maine's Chapter 111 was originally approved into the Maine SIP on February 19, 1980 (see 45 FR 10766) and a revised version of the rule was approved by EPA on February 3, 1992 (see 57 FR 3946) as meeting RACT requirements.
CAA section 110(
Maine's Chapter 112 was originally approved into the Maine SIP on February 19, 1980 (see 45 FR 10766) and several updates to the rule have also been subsequently approved by EPA. In particular, a revised version of the rule was approved by EPA on February 3, 1992 (see 57 FR 3946) as meeting RACT requirements. The most recent approval of Chapter 112 occurred on October 15, 1996 (see 61 FR 53635). As noted in that approval, Maine's Chapter 112 is generally consistent with 40 CFR Part 60 Subpart XX and the following CTG: “Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals” (EPA-450/2-77-026). Maine's February 26, 1998 submittal, containing revised Chapter 112, includes a new, more stringent requirement for the following major sources of hazardous air pollutants (HAPs): (1) All existing and new bulk terminals and pipeline breakout stations that emit 10 tons/year or more of a HAP or 25 tons/year or more of a combination of HAPs; and (2) all existing and new bulk terminals and pipeline breakout stations that are located at plant sites that emit 10 tons/year or more of a HAP or 25 tons/year or more of a combination of HAPs. Emissions from a vapor collection and processing system (due to loading of gasoline cargo tanks) for major sources of HAPs are, under the revised rule, limited to 10 milligrams of total organic compound per liter of gasoline loaded, a reduction from the rule's previous limit of 35 milligrams of total organic compound per liter of gasoline loaded. The emission limit for sources that are not major sources of HAPs remains at 35 milligrams of total organic compound per liter of gasoline loaded. The revised rule also incorporates by reference the following federal maximum available control technologies (MACT) standards: “National Emission Standards for Hazardous Air Pollutants for Source Categories: Gasoline Distribution (Stage I)” at 40 CFR Part 63, Subpart R; and “National Emission Standards for Hazardous Air Pollutants Marine Tank Vessel Loading Operations” at 40 CFR Part 63, Subpart Y.
Maine's revised Chapter 112 includes a more stringent VOC limit than the previous SIP-approved version of the rule (i.e. 10 versus 35 milligrams, respectively, for major sources of HAPs). Therefore, CAA section 110(
EPA is proposing to approve and incorporate into the Maine SIP, Chapter 159, Control of Volatile Organic Compounds from Adhesives and Sealants, and Chapter 154, Control of Volatile Organic Compounds from Flexible Package Printing, as meeting RACT for the miscellaneous industrial adhesives and flexible package printing CTG categories, respectively. In addition, EPA is proposing to approve and incorporate into the Maine SIP revised Chapter 111, Petroleum Liquid Storage Vapor Controls, and revised Chapter 112, Bulk Terminal Petroleum Liquid Transfer Requirements, both of which are consistent with CAA requirements and with EPA guidance for reducing VOC emissions from petroleum liquid storage facilities and from bulk terminal petroleum liquid transfer operations, respectively.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401 et seq.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to extend two reporting deadlines for the 2013 compliance period under the Renewable Fuel Standard (RFS) program. This proposed action would specifically affect the annual compliance and attest engagement reporting requirement deadlines for regulated parties. The annual compliance reports and attest engagement reports for the 2013 RFS compliance period would not be due until 30 days and 90 days, respectively, following publication of the final rule establishing the 2014 renewable fuel percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel and total renewable fuel in the
Written comments must be received on or before September 15, 2014.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0575, by one of the following methods:
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Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor MI 48105; Telephone number: 734-214-4131; Fax number: 734-214-4816; Email address:
This document proposes to take action to extend certain reporting requirement deadlines for the 2013 RFS compliance period. We have also published a direct final rule in the “Rules and Regulations” section of this
If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in a subsequent final rule based on this proposed rule.
We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the
Entities potentially affected by this direct final rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Potentially regulated categories include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this proposed action. This table lists the types of entities that the EPA is now aware could be potentially regulated by this proposed action. Other types of entities not listed in the table could also be regulated. To determine whether your activities would be regulated by this proposed action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this proposed action to a particular entity, consult the person listed in the preceding section.
The EPA is proposing to amend existing regulatory deadlines for regulated parties under the RFS program regarding the submission of annual compliance reports and attest engagement reports for the 2013 RFS compliance period.
We received comments on our November 29, 2013 proposed rulemaking to establish the 2014 renewable fuel percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel and total renewable fuel
Because the 2014 renewable fuel standards were not final at the time the annual compliance reports for the 2013 RFS compliance period were coming due, we further extended this reporting deadline until September 30, 2014 (as well as the associated deadline for attest engagement reports until January 30, 2015).
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).
There are no new information collection requirements associated with this proposed rulemaking. The extension of the existing regulatory deadlines for regulated parties under the RFS program would impose no new or different reporting requirements on regulated parties. The existing information collection requests (ICR) that apply to the RFS program are sufficient to address the reporting requirements in the proposed regulations.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
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 Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this 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-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would amend the existing regulatory deadlines for regulated parties under the RFS program to submit reports demonstrating their compliance with the 2013 RFS standards, and to submit corresponding attest engagement reports. This proposed action if finalized would ensure timely amendment of existing deadlines, before compliance obligations would otherwise go into effect. The impacts of the RFS program on small entities were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670), and this proposal would not impose any additional requirements on small entities beyond those already analyzed.
This proposed action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. Therefore, this proposed action is not subject to the requirements of sections 202 or 205 of the UMRA.
This proposed action is also not subject to the requirements of section 203 of UMRA because it contains no proposed regulatory requirements that might significantly or uniquely affect small governments. This proposed rule only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and would merely extend the otherwise applicable reporting deadlines.
This proposed action does not have federalism implications. It would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed action would amend the existing regulatory deadlines for regulated parties under the RFS program to submit reports demonstrating their compliance with the 2013 RFS standards, and to submit corresponding attest engagement reports. The proposed new deadlines would only apply to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers. Thus, Executive Order 13132 does not apply to this proposed rule.
This proposed action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed rule would be implemented at the Federal level and affects transportation fuel refiners, blenders, marketers, distributors, importers, exporters, and renewable fuel producers and importers. Tribal governments would be affected only to the extent they purchase and use regulated fuels. Thus, Executive Order 13175 does not apply to this proposed action.
The 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 proposed action is not subject to E.O. 13045 because it would not establish an environmental standard intended to mitigate health or safety risks and because it would implement specific standards established by Congress in statutes (section 211(o) of the Clean Air Act).
This proposed action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it would not likely have a significant adverse effect on the supply, distribution, or use of energy. This proposed action would simply amend certain reporting deadlines for regulated parties under the RFS program.
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 the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or
This proposed rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.
Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The EPA has determined that this proposed rule would not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it would not affect the level of protection provided to human health or the environment. This proposed action would not relax the control measures on sources regulated by the RFS regulations and therefore would not cause emissions increases from these sources.
Statutory authority for this action comes from sections 211 and 301(a) of the Clean Air Act, 42 U.S.C. 7545 and 7601(a).
Environmental protection, Administrative practice and procedure, Air pollution control, Diesel fuel, Fuel additives, Gasoline, Imports, Oil imports, Petroleum, Renewable fuel.
For the reasons set forth in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:
42 U.S.C., 7414, 7521, 7542, 7545, and 7601(a).
(a) * * *
(1) * * *
(xiv) For the 2013 compliance year, annual compliance reports shall be submitted within 30 days after publication in the
(g) For the 2013 compliance year, reports required under this section shall be submitted to the EPA within 90 days after publication in the
Federal Emergency Management Agency, DHS.
Proposed rule; correction.
On February 16, 2011, the Federal Emergency Management Agency (FEMA) published in the
Comments are to be submitted on or before November 6, 2014.
You may submit comments, identified by Docket No. FEMA-B-1175, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064 or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064 or (email)
FEMA publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.
In the proposed rule published at 76 FR 8982-8984, in the February 16, 2011, issue of the
In Proposed rule FR Doc. 2011-3420, beginning on page 8978 in the issue of February 16, 2011, make the following correction. On pages 8982-8984, correct the Montgomery County, Pennsylvania table as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting; request for presentations.
NMFS will host a meeting to elicit scientific information related to the designation of Steller sea lion critical habitat under the Endangered Species Act (ESA). NMFS is considering revisions to the critical habitat designation to take into account new information that has become available since NMFS designated critical habitat in 1993. This meeting will provide an opportunity for NMFS to receive presentations from the public concerning new and relevant scientific
The meeting will be held September 22, 2014, from 9:00 a.m.-5:00 p.m. Pacific Daylight Time. Statements of interest and abstracts must be received by 5:00 p.m. Alaska Daylight Time on August 29, 2014 to be considered for presentation during the meeting.
You may submit statements of interest in making a presentation and abstracts, identified by NOAA-NMFS-2014-0096, by either of the following methods:
Electronic Submissions: Submit all electronic statements of interest in making a presentation and abstracts via the Federal eRulemaking Portal. Go to
Mail: Submit written statements of interest in making a presentation and abstracts to Jon Kurland, Assistant Regional Administrator for Protected Resources, Alaska Region, NMFS, Attn: Ellen Sebastian, P.O. Box 21668, Juneau, AK 99802-1668. Statements of interest in making a presentation and abstracts sent by any other method, to any other address or individual, or received after the end of the submission period, may not be considered by NMFS. All materials received are a part of the public record and will generally be posted for public viewing on
The meeting will be held at NMFS Alaska Fisheries Science Center, 7600 Sand Point Way NE., Building 4, Seattle, WA 98115, in the Jim Traynor Conference Room. Information about designation of critical habitat under the ESA is available at:
Dr. Lisa Rotterman, 907-271-1692.
The Steller sea lion was originally listed as a threatened species under the ESA by an emergency interim rule on April 5, 1990 (55 FR 12645). NMFS published a final rule to list the Steller sea lion as a threatened species under the ESA on November 26, 1990 (55 FR 49204). NMFS designated critical habitat for the Steller sea lion on August 27, 1993 (58 FR 45269). On May 5, 1997 (62 FR 24345), based on demographic and genetic dissimilarities, NMFS identified two DPSs of Steller sea lions under the ESA: a western DPS and an eastern DPS. Due to persistent decline, the western DPS was reclassified as endangered, while the eastern DPS remained classified as threatened. On November 4, 2013, NMFS published a final rule to delist the eastern DPS (78 FR 66140). In that final rule, NMFS stated that “NMFS will undertake a separate rulemaking to consider amendment to the existing critical habitat designation that takes into account any new and pertinent sources of information since the 1993 designation, including amending the critical habitat designation as appropriate to reflect the delisting of the eastern DPS.” NMFS has begun a review of Steller sea lion critical habitat to determine if revision of the existing critical habitat is warranted.
Section 3 of the ESA defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed [under Section 4], on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species.”
Section 4 of the ESA requires the designation of critical habitat for threatened and endangered species and provides for the revision of critical habitat based on the best scientific data available after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. Critical habitat may only be designated in areas under U.S. jurisdiction (50 CFR 424.12(h)).
NMFS will hold a public meeting to elicit external scientific information that is relevant to NMFS's review of Steller sea lion critical habitat. The existing critical habitat designation for Steller sea lions was developed for the species throughout its range in the U.S. (58 FR 45269; August 27, 1993), encompassing what NMFS subsequently identified as two DPSs (62 FR 24345; May 5, 1997). Given the recent delisting of the eastern DPS, any revisions to critical habitat should be based upon the physical or biological features essential to the conservation of the endangered western DPS.
NMFS requests that parties interested in presenting information relevant to the identification of areas as critical habitat for the western DPS of Steller sea lion submit a statement of interest with a brief (one page or less) abstract of the type of information to be presented. Presentations must address scientific information that is germane to the identification of areas that meet the ESA's definition of critical habitat. Persons or groups proposing to present information that is not relevant to this topic will not be invited to make presentations.
Due to the limited time available for presentations, NMFS encourages individuals or groups that may have similar or related scientific information, or similar interpretations of the best available scientific information, to coordinate their proposed presentations into subject specific panels to present the information effectively and minimize redundancy. For example, a panel could be comprised of a team of scientists who have worked together in collaborative studies that address relevant questions, several fishing industry representatives, or several representatives of non-governmental organizations, with each participant addressing a different facet of the relevant scientific information.
NMFS will review the statements of interest, abstracts, and proposed panels that are submitted and will schedule the presentations so as to focus on the scientific information most relevant to the criteria for identifying critical habitat. The amount of time available per presenter or panel will depend on the number of persons and groups wishing to make presentations. NMFS will contact the proposed presenters in advance of the meeting to specify the amount of time available and the approximate schedule. During the meeting, presenters may provide additional written information to NMFS for consideration.
More information on the basis for NMFS's determination of critical habitat is available on the NMFS Web site (see
Individuals wishing to attend the meeting who are not citizens of the United States must make prior arrangements to be permitted entrance to the Alaska Fisheries Science Center (see
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Jennifer Ferdinand, (206) 526-4076, at least 5 working days prior to the meeting date.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 8, 2014 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC, 20503. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
This is a reinstatement with change, of the Census of Horticultural Specialties survey to be conducted as a follow-on survey to the 2012 Census of Agriculture.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 8, 2014 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW., Washington, DC 20502. Commenters are encouraged to
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice of Intent to Prepare an Environmental Impact Statement.
The Forest Service will prepare an Environmental Impact Statement (EIS) to disclose the environmental consequences of implementing alternatives considered for the Becker Integrated Resource
Project scoping was initiated with publication of a legal notice in the newspaper of record, the
This project is being planned under authorization of the Pre-decisional Administrative Review Process defined by 36 CFR part 218. This new rule replaces the previous project decision appeal rules defined in 36 CFR part 215. The new rule provides the public an opportunity to comment and express concerns on projects before decisions are made, rather than after. The Forest Service believes this aligns with our collaborative approach to forest management and increases the likelihood of resolving those concerns, resulting in better, more informed decisions.
Individuals and entities who submit specific written comments at this stage and/or already provided comments during the earlier comment period from May 7 through June 9, 2014, will be eligible to object. An additional comment opportunity will also be provided during the comment period for review of the Draft EIS (DEIS) and those who provide specific written comments during this comment period will also be eligible to object. For more information on 36 CFR Part 218, see the
Written, facsimile, hand-delivered, verbal, and electronic comments concerning this project will be accepted. Specific written comments must be submitted to: Boise National Forest, Idaho City Ranger District, Attention: District Ranger, P.O. Box 129, Idaho City, ID 83631; or by fax to 208-392-6684. The office hours for those submitting hand-delivered comments are: 8 a.m. to 4:30 p.m. Monday through Friday, excluding holidays. Oral comments may also be provided at the Idaho City Ranger District office during normal business hours via telephone 208-392-6681 or in person. However; please be aware that to have standing to object, specific written comments must be provided at some point during this comment period, the comment period on the DEIS, or previously provided during the initial scoping period initatied on May 7, 2014.
Comments may also be submitted through the Becker Integrated Resource Project Web page at
Email comments must be submitted in a format such as an email message, plain text (.txt), rich text format (.rtf), Adobe (.pdf) and Word (.doc) to
Comments or requests received in response to this publication, including names and addresses of those who respond, will be part of the public record for this proposed action.
Comments received in response to this request will be available for public inspection on the “Public Comment Reading Room” at the project Web site:
Randall Hayman, Forest Planner, Boise National Forest at the email address above or by phone at 208-373-4157.
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 Time, Monday through Friday.
The 19,327-acre Becker project area falls within the Middle Crooked River Watershed (HUC 17050110503), formerly named the Beaver-Edna watershed, and Pikes Fork (HUC 17050110502) subwatersheds; both subwatersheds are part of the larger Crooked River Watershed. The area is located approximately 18 miles northeast of Idaho City, Idaho, and about 48 miles northeast of Boise, Idaho, in Boise County . The following primary drainages and streams are located in the project area: Crooked River, Whoop-Um-Up Creek, Lamar Creek, Beaver Creek, Pikes Fork Creek, Banner Creek, Little Beaver Creek, and Edna Creek. The Pilot Peak mountain landform lies in the southwest corner of the project area, State Highway 21 bisects the area, Banner Ridge lies along the north end, and Crooked River and Lamar Creek roughly form the southern boundary of the project area.
To address Purpose #1, vegetation restoration utilizing (1) commercial timber harvest activities would be conducted on about 3,243 acres utilizing tractor and tractor/off-road jammer logging systems; (2) miscellaneous wood products would be removed through thinning on an additional 1,547 acres; and (3) non-commercial thinning of small diameter trees would occur on an additional 3,452 acres, mostly within existing plantations, with no product removal. Total acres proposed for mechanical vegetative treatment would be 8,242, of which about 25% would be within riparian conservation areas (RCAs) as defined in the Boise National Forest Plan, Appendix B. Approximately 5.7 miles of temporary roads are anticipated to be constructed to support commercial timber harvest activities.
Both activity fuel treatments (i.e., fuels resulting from mechanical treatments) and natural fuels treatments would occur on approximately 9,796 acres. Activity fuels treatments include combinations of (1) chip, lop and scatter, handpile and burn, and/or burn concentrations; (2) whole tree yard to landings, lop and scatter, handpile and burn and/or burn concentrations; and (3) yard bole material to landings, handpile and burn concentrations, and lop and scatter. Natural fuels treatments include both direct and indirect application of prescribed fire. Within 3-5 years following mechanical treatments and completion of initial activity fuel activities, follow-up restoration prescribed fire treatments are anticipated to be applied across approximately 10,624 acres of the 19,327 acre project area.
To address Purpose #2, approximately (1) 4.9 miles of NFS roads would be reconstructed; (2) 1.3 miles of new road would be constructed; (3) 3.9 miles of unauthorized routes would be added to the transportation system; (4) 23.3 miles of NFS roads and 7.5 miles of unauthorized routes would be decommissioned; and (5) 6.9 miles of NFS roads would be converted to trails. As a result of road treatments, the 78.1 miles of roads currently open to public use for full size vehicles would be reduced to 53 miles. However, as discussed under Purpose #3 below, 23.7 miles of new motorized trail would be developed and open to public motorized use for vehicles less than or equal to 50 inches in width. Thus, total miles of roads and trails open to public motorized use would be 76.4 miles, a net reduction of routes open to public motorized use of 1.4 miles from the current situation.
In addition to the road management activities identified above, 23 aquatic organism passage barriers (culverts within existing roads) would be treated to remove barriers. This includes removal or replacement of 7 culverts within priority critical bull trout habitat and another 15 culverts outside priority critical bull trout habitat. In addition, 1 culvert would be treated through outlet pool modification in order to eliminate barrier concerns.
To address Purpose #3, new motorized and non-motorized trail opportunities will be developed and/or authorized. These trail systems will take advantage of existing NFS roads and/or unauthorized routes to the extent practicable in order to minimize the need for new trail construction and associated disturbance. Overlap of the motorized and non-motorized system and shared use on NFS roads open to full size motor vehicle public use will be minimized to reduce potential user conflicts, user safety issues, and improve the overall quality of the recreation experience for all user groups. Specifically, (1) a new 23.7 mile motorized trail will be designated with supporting trailhead facilities; (2) 41.7 miles of summer non-motorized trails would be authorized; and (3) 55.7 miles of winter non-motorized trails would be authorized. To further reduce conflicts and potential safety issues between motorized and non-motorized winter recreationists and improve the quality of the overall quality of the non-motorized recreation experience within the project area, the winter motorized restriction area east of Highway 21 in the project area would be extended to areas adjacent to the non-motorized trail system west of Highway 21 and in the southern portion of the project area.
To address Purpose #4, several of the aspects of the proposed action will provide support to local and regional economies including (1) by accomplishing Purposes #1 and #3, improvements and sustainability of the recreational use and experience within the Becker project area will continue to provide recreational user support, resulting in both direct and indirect benefits to local and regional economies; (2) wood products will also be an output of accomplishing Purpose #1. Specifically, it is expected the following wood products would be generated, (a) 6-8 million board feet of sawlogs, (b) a quarter million board feet of post and pole material, (c) more than 1,700 cords of fuelwood, and (d) more than 42,000 tons of woody biomass would be provided; and (3) other restoration activities are anticipated to generate economic outputs to support local and regional economies. This includes contract work for (a) road realignment, construction, reconstruction, and maintenance; (b) motorized and non-motorized recreational trail realignment, construction, reconstruction, and maintenance; (c) aquatic organism passage culvert replacement, removal and/or improvements; (d) non-commercial tree thinning; (e) installation of road closure barriers (seasonal and long term); and (f) activity fuel treatments, both mechanical and prescribed fire.
In addition to the actions developed to specifically address Purposes #1 through #4, an amendment to the Forest Plan standard 0763 is proposed to (1) add a modification Visual Quality Objectives (VQOs) to the motorized trail proposed to be designated; (2) partial retention VQOs to the winter and summer non-motorized trails to be authorized; (3) partial retention VQOs around the recreational Yurts in the project area; and (4) change the foreground retention requirement along Highway 21 to partial retention to allow
The DEIS is expected to be published in December 2014. The comment period on the DEIS will end 45 days following the date of publication of the notice of availability (NOA) in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of the DEIS must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments should be as specific as possible; to have standing to object during the objection filing period, specific written comments must be provided as defined at 36 CFR part 218. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Forest Service, USDA.
Notice.
This notice lists the newspapers that Ranger Districts, Forests, and the Regional Office of the Rocky Mountain Region will use to publish legal notices required under 36 CFR part 218 and 219. The intended effect of this action is to inform interested members of the public which newspapers will be used to publish legal notices for opportunities to comment or file an administrative review on USDA Forest Service proposals.
Publication of legal notices in the listed newspapers will begin on the date of this publication and continue until further notice.
USDA Forest Service, Rocky Mountain Region; ATTN: Regional Administrative Review Coordinator; 740 Simms Street, Golden, Colorado 80401.
Ken Tu, Regional Administrative Review Coordinator, 303-275-5156.
The administrative review procedures at 36 CFR 218 and 219 require the Forest Service to publish notices in a newspaper of general circulation. The content of the notices is specified in 36 CFR 218 and 219. In general, the notices will identify: The decision or project, by title or subject matter; the name and title of the official making the decision; how to obtain additional information; and where and how to file comments or requests for administrative review. The date the notice is published will be used to establish the official date for the beginning of the comment or filing period. The newspapers to be used are as follows:
Regional Forester decisions affecting National Forest System lands in Colorado, Kansas, Nebraska and those portions of South Dakota and Wyoming within the Rocky Mountain Region:
Forest Supervisor decisions:
District Ranger decisions for Canyon Lakes District:
District Ranger decisions for Pawnee District:
District Ranger decisions for Boulder District:
District Ranger decisions for Clear Creek District:
District Ranger decisions for Sulphur District:
Forest Supervisor decisions:
Forest Supervisor decisions:
District Ranger decision:
Forest Supervisor decisions:
District Ranger decisions for Grand Valley District:
District Ranger decisions for Paonia District:
District Ranger decisions for Gunnison Districts:
District Ranger decisions for Norwood District:
District Ranger decisions for Ouray District:
Forest Supervisor decisions:
District Ranger decisions for Laramie District:
District Ranger decisions for Douglas District:
District Ranger decisions for Brush Creek-Hayden District:
District Ranger decisions for Hahns Peak-Bears Ears District:
District Ranger decisions for Yampa District:
District Ranger decisions for Parks District:
Forest Supervisor decisions:
District Ranger decisions for Bessey District/Charles E. Bessey Tree Nursery:
District Ranger decisions for Pine Ridge District:
District Ranger decisions for Samuel R. McKelvie National Forest:
District Ranger decisions for Fall River and Wall Districts, Buffalo Gap National Grassland:
District Ranger decisions for Fort Pierre National Grassland:
Forest Supervisor decisions:
District Ranger decisions for San Carlos District:
District Ranger decisions for Comanche District-Carrizo Unit:
District Ranger decisions for Comanche District-Timpas Unit:
District Ranger decisions for Cimarron District: The Elkhart
District Ranger decisions for South Platte District:
District Ranger decisions for Leadville District:
District Ranger decisions for Salida District:
District Ranger decisions for South Park District:
District Ranger decisions for Pikes Peak District:
Forest Supervisor decisions:
District Ranger decisions for all Districts:
Forest Supervisor decisions:
District Ranger decisions for Columbine and Pagosa Districts:
District Ranger decisions for Dolores District:
Forest Supervisor decisions:
District Ranger decisions for Clarks Fork District:
District Ranger decisions for Wapiti and Greybull Districts:
District Ranger decisions for Wind River District:
District Ranger decisions for Washakie District:
Forest Supervisor decisions:
District Ranger decisions for Aspen-Sopris District:
District Ranger decisions for Blanco District:
District Ranger decisions for Dillon District:
District Ranger decisions for Eagle-Holy Cross District:
District Ranger decisions for Rifle District:
Tuesday, August 12, 2014, 11:00 a.m. EDT.
Broadcasting Board of Governors, Cohen Building, Room 3321, 330 Independence Ave. SW., Washington, DC 20237.
Notice of Closed Meeting of the Broadcasting Board of Governors.
The members of the Broadcasting Board of Governors (Board) will meet in a closed session to consider the appointment of the Director of Global Strategy for the Agency. This meeting will be closed to public observation pursuant to 5 U.S.C. 552b(c)(6) in order to protect the privacy interests of candidates considered but not selected for the position. In accordance with the Government in the Sunshine Act and BBG policies, the meeting will be recorded and a transcript of the proceedings, subject to the redaction of information protected by 5 U.S.C. 552b(c)(6), will be made available to the public. The publicly-releasable transcript will be available for download at
Information regarding member votes to close the meeting and expected attendees can also be found on the Agency's public Web site.
Persons interested in obtaining more information should contact Oanh Tran at (202) 203-4545.
Wednesday, August 13, 2014, 9:00 a.m.-1:00 p.m. EDT.
Cohen Building, Room 3321, 330 Independence Ave. SW., Washington, DC 20237.
Notice of Meeting of the Broadcasting Board of Governors.
The Broadcasting Board of Governors (Board) will be meeting at the time and location listed above. The Board will vote on a consent agenda consisting of the minutes of its June 20, 2014 meeting and a resolution to change the BBG meeting date in October 2014. The Board will discuss and vote on FY 2015 regional strategies based on this year's strategy review and consider establishing new Board special committees. The Board will also receive a report by its Special Committee on the Future of Shortwave Broadcasting. Finally, the Board will receive a presentation providing an overview of Radio Free Europe/Radio Liberty and engage in a conversation with the Deputy National Security Adviser for Strategic Communication.
This meeting will also be available for public observation via streamed webcast, both live and on-demand, on the agency's public Web site at
The public may also attend this meeting in person at the address listed above as seating capacity permits. Members of the public seeking to attend the meeting in person must register at
Persons interested in obtaining more information should contact Oanh Tran at (202) 203-4545.
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).
An international system exists to use satellites to detect and locate ships, aircraft, and individuals in distress if they are equipped with an emergency radio beacon. Persons purchasing a digital distress beacon, operating in the frequency range of 406.000 to 406.100 MHz, must register it with NOAA. These requirements are contained in Federal Communications Commission (FCC) regulations at 47 CFR 80.1061, 47 CFR 87.199 and 47 CFR 95.1402. The data provided by registration can assist in identifying who is in distress and in suppression of false alarms.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce (DOC) 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).
A survey questionnaire with a cover letter that includes a brief description
45 CFR subpart C, Post-Award Requirements, sections 74.21 and 74.53; 42 U.S.C. 282; Economy Act (31 U.S.C. 1535 and 1536); and 15 U.S.C. 1525.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 18, 2014, the Department published its final determination of sales at less than fair value in the antidumping duty investigation of certain oil country tubular goods from Taiwan. The Department is amending its final determination to correct a ministerial error with respect to one respondent.
Thomas Schauer or Hermes Pinilla, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0410 or (202) 482-3477, respectively.
On July 18, 2014, the Department published its final determination of sales at less than fair value in the antidumping duty investigation of certain oil country tubular goods from Taiwan.
The merchandise covered by the investigation is certain oil country tubular goods (OCTG), which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
Excluded from the scope of the investigation are: casing or tubing containing 10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and unattached thread protectors. The merchandise subject to the investigations is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The merchandise subject to the investigation may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55, 7306.30.50.90, 7306.50.50.50, and 7306.50.50.70.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.
A “ministerial error” is defined under 19 CFR 351.224(f) as: An error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying,
On July 21, 2014, Tension submitted a ministerial error allegation. After analyzing Tension's allegation, we agree with Tension that the Department committed a ministerial error within the meaning of 19 CFR 351.224(f) by using an incorrect variable name for U.S. rebates. Specifically, we meant to set certain U.S. rebates to zero but inadvertently did not because we made a typographical error in the variable name in the programming.
The Department determines that the following weighted-average dumping margins exist for the period July 1, 2012, through June 30, 2013:
The
Section 735(c)(5)(A) of the Act provides that the estimated “all others” rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
In accordance with section 735(d) of the Act, we notified the U.S. International Trade Commission (ITC) of the
This amended final determination notice is published in accordance with section 735(e) of the Act and 19 CFR 351.224(e).
International Trade Administration, Department of Commerce
Amendment.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service is amending the Notice published at 79 FR 28683, May 19, 2014, for the Renewable Energy and Energy Efficiency Trade Policy Mission to Peru originally scheduled for November 12-13, 2014, in Lima, Peru, to revise the mission description to notify potential applicants that the mission will be led by an Executive official, rather than a senior official, of the Department of Commerce. In addition, the mission will now occur November 4-5, 2014.
Ryan Mulholland, Senior Renewable Energy Trade Specialist, Office of Energy and Environmental Industries, Phone: (202) 482-4693, Email:
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on
Written comments must be submitted on or before October 7, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instruments and instructions should be directed to Paul Marx, (301) 427-8752 or
This request is for revisions to, and an extension of, a currently approved information collection. United States (U.S.) commercial fishermen may file claims for compensation for losses of, or damage to, fishing gear or vessels, plus 50 percent of resulting economic losses, attributable to oil and gas activities on the U.S. Outer Continental Shelf. To obtain compensation, applicants must comply with requirements set forth in 50 CFR part 296.
The requirements include a “report” within 15 days of the date the vessel first returns to port after the casualty incident to gain a presumption of eligible causation and an “application” within 90 days of when the applicant first became aware of the lost and/or damage.
The report is NOAA Form 88-166 and it requests identifying information such as: respondent's name; address; social security number; and casualty location. The information in the report is usually completed by NOAA during a telephone call with the respondent.
The application is NOAA Form 88-164 and it requires the respondent to provide information on the property and economic losses and/or damages including: type of damage; purchase date and price of lost/damaged gear; and income from recent fishing trips. It also includes an affidavit by which the applicant attests to the truthfulness of the claim.
The currently approved forms are being revised to improve the usability by allowing respondents to complete pdf versions of the forms as well as reducing the paper size from legal to letter. Prior sections that contained multiple questions have been separated to simplify the responses and to help ensure more complete and accurate responses. Because “Loran C” is no longer being used for locational coordinates, the term will be replaced with “GPS” for Global Positioning System. Clarification of some of the instructions will also be provided based on previous applicants' responses and submitted reports and applications.
Respondents may telephone NOAA and provide the information for the report verbally or submit a paper or electronic report. Respondents have a choice of either electronic or paper forms for the application.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Monkfish Committee and Monkfish Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Monday, August 25, 2014 at 9:30 a.m.
The meeting will be held at the Embassy Suites Philadelphia, 9000 Bartram Avenue, Philadelphia, PA 19153; telephone: (215) 365-4500; fax: (215) 365-3195.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Monkfish Oversight Committee will meet to discuss whether to continue working on measures already developed under Amendment 6, or develop other measures as part of the next monkfish action. The latest version of the Amendment 6 document includes modifications to existing monkfish landing limits and days-at-sea (DAS) measures, a new monkfish DAS leasing program, and an ITQ alternative. The committee will also consider other potential measures, raised in previous discussions and by members of the industry, that could be included in a future action. The committee will also discuss Monkfish priorities for 2015, including Research Set-Aside priorities.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings of the Gulf of Mexico Fishery Management Council.
The Gulf of Mexico Fishery Management Council (Council) will hold meetings of the: Budget/Personnel, Administrative Policy, Red Drum, Reef Fish, Shrimp and Data Collection Management Committees; in conjunction with a meeting of the Full Council. The Council will hold a closed session. The Council will also hold a formal public comment session.
The Council meeting will be held from 1 p.m. on Monday, August 25 until 4:15 p.m. on Thursday, August 28, 2014.
Mr. Douglas Gregory, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630; fax: (813) 348-1711; email:
The items of discussion for each individual management committee agenda are as follows:
The Agenda is subject to change, and the latest version will be posted on the Council's file server, which can be accessed by going to the Council Web site at
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council Office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of addendum to a public meeting.
The New England Fishery Management Council's (Council) Scientific and Statistical Committee (SSC) will meet over two days to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Monday, August 25, 2014 at 9:30 a.m. and Tuesday, August 26, 2014 at 8:30 a.m.
The meeting will be held at the Courtyard by Marriott/Boston Logan Airport, 225 McClellan Highway, Boston, MA 02128; telephone: (617) 569-5250.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The original notice published in the
The SSC will meet to (1) Review stock assessment information, consider information provided by the Groundfish PDT and develop ABC recommendations for Gulf of Maine haddock and Georges Bank yellowtail flounder for fishing years 2015-17; and (2) review stock assessment information, consider information provided by the Whiting PDT and develop ABC recommendations for northern and southern stocks of red hake, whiting (silver hake) and offshore hake for fishing years 2015-17. The committee may not complete all the ABC recommendations for these stocks at this meeting. Review ongoing work from the Council's Risk Policy Working Group; Provide input regarding the development of a Risk Policy Statement, which will articulate the Council's risk tolerance and serve as guidance for ABC (acceptable biological catch) control rules and annual catch limits (ACLs) for Council-managed species. The committee will address other business as necessary.
Although non-emergency issues not contained in this agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see
16 U.S.C. 1801
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of public meeting.
The Board of the First Responder Network Authority (FirstNet) will hold a Special Meeting via
The Special Meeting will be held on Friday, August 15, 2014, from 11:00 a.m. to 12:00 p.m. Eastern Daylight Time.
The Special Meeting will be conducted via teleconference. Members of the public may listen to the meeting by dialing toll-free 1-888-282-1676 and using passcode “FirstNet.” Due to the limited number of ports, attendance via teleconference will be on a first-come, first-served basis.
Margaret Baldwin, 12201 Sunrise Valley Drive, Reston, VA 20192: telephone (703) 648-4161 or via email
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Addition to the Procurement List.
The Committee is proposing to add a product to the Procurement List that will be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities.
Comments Must Be Received on or Before: 9/8/2014.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 USC 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed action.
If the Committee approves the proposed addition, the entity of the Federal Government identified in this notice will be required to procure the product listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.
The following product is proposed for addition to the Procurement List for production by the nonprofit agency listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and Deletions from the Procurement List.
This action adds services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 5/23/2014 (79 FR 29747) and 6/13/2014 (33911-33912), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the services and impact of the additions on the current or most recent contractors, the Committee has determined that the services listed below are suitable for procurement by
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the services to the Government.
2. The action will result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501-8506) in connection with the services proposed for addition to the Procurement List.
Accordingly, the following services are added to the Procurement List:
On 6/27/2014 (79 FR 36477), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501-8506) in connection with the products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled Segal AmeriCorps Education Award Matching Program Commitment Form for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Robert Bisi of CNCS at 202-606-6638 or email to
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for CNCS, by any of the following two methods within 30 days from the date of publication in the
(1) By fax to: 202-395-6974, Attention: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service; or
(2) By email to:
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose 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.
A 60-day Notice requesting public comment was published in the
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 8, 2014.
Fred Licari, 571-372-0493.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Missile Defense Agency, Department of Defense.
Final guidance.
The Missile Defense Agency (MDA or the Agency) is issuing procedures to implement the National Environmental Policy Act (NEPA), Executive Order (E.O.) 11514, and Council on Environmental Quality (CEQ) regulations on implementing NEPA.
This final guidance document is effective August 8, 2014.
Mr. Eric Sorrells, Chief, Environmental Management, at (256) 450-2677 or by email at
MDA published its proposed procedures to implement the National Environmental Policy Act (NEPA), Executive Order (E.O.) 11514, and Council on Environmental Quality (CEQ) regulations on implementing NEPA (Code of Federal Regulations (CFR) parts 1500-1508) in the
MDA is responsible for developing, testing, and fielding an integrated, layered, Ballistic Missile Defense System (BMDS) to defend the United States, its deployed forces, allies, and friends against all ranges of enemy ballistic missiles in all phases of flight. Using complementary interceptors; land-, sea-, air-, and space-based sensors; and battle management, command and control, and communications systems, the planned BMDS is intended to engage and negate all classes and ranges of ballistic missile threats.
MDA and its predecessor organizations prepared several programmatic BMDS National Environmental Policy Act (NEPA) documents to analyze the environmental impacts of its actions. In addition, MDA has prepared or been a cooperating agency for over 70 environmental assessments (EAs) or environmental impact statements (EISs) for specific program activities. These NEPA documents cover activities including research and development, site preparation and construction,
As a DoD agency, the MDA does not own real property. Because most MDA actions typically occur on host military service installations or ranges, or other Federal agency properties, MDA has historically relied upon our host installation or Federal agency's NEPA implementation, including their implementing procedures and CATEXs, to address the environmental impacts of MDA actions.
With the issuance of CEQ guidance “Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act” (2010) and after consulting informally with the CEQ, MDA determined the need to establish NEPA implementing procedures and CATEXs specific to MDA projects and actions. The information that MDA assembled while developing our CATEXs is described in the “Administrative Record for Missile Defense Agency Proposed Categorical Exclusions” and is available on the MDA Web site at:
MDA's CATEXs describe the categories of actions that the Agency determined will not normally have a potential significant effect, individually or cumulatively on the human environment; and together with these implementing procedures will guide MDA organizations in carrying out the procedural requirements of NEPA.
The text of the complete final Guidance document appears below.
These procedures implement the provisions of the NEPA, 42 U.S.C. 4321
The policies and responsibilities in these procedures apply to activities conducted by MDA and its executing agents in the United States, its possessions, and territories. The potential environmental effects of MDA proposed activities in foreign countries and global commons will be considered in accordance with Executive Order 12114, “Environmental Effects Abroad of Major Federal Activities,” DoD directives, host nation final governing standards, overseas environmental baseline guidance documents, status of forces agreements, and other international agreements.
(a) It is MDA policy regarding NEPA, consistent with our mission and regulations and the environmental laws and regulations of the United States, to: (1) Start the NEPA process at the earliest possible time as an effective decision-making tool while evaluating a proposed action; (2) develop and carefully consider a range of reasonable alternatives to achieve the proposed actions; (3) write environmental analyses in plain English; and (4) to the maximum extent practical: (i) Include pollution prevention alternatives, (ii) consider sustainable transportation, greenhouse gas emissions, and energy choices, and (iii) ensure that, consistent with other national policies and national security requirements, we use practical means and measures to protect, restore, and enhance the quality of the environment and mitigate adverse consequences. MDA lacks projects or programs where actions are planned by private applicants or other non-Federal entities. Therefore, these procedures do not include the provision (as specified at 40 CFR § 1501.2(d)) to account for actions planned by private applicants or other non-Federal entities.
(b) MDA will promote efficiency in its NEPA process through: (1) Being aware and involved with the MDA project advocate (or MDA proponent) in the NEPA process; (2) using programmatic analyses and “tiering,” where appropriate, to make sure that decisions are made at the right levels, eliminating repetitive discussion, considering cumulative effects, and focusing on issues that are important and appropriate for discussion at each level; (3) using scoping and public involvement processes to ensure the analysis of issues of interest to the public and/or important to decision making; (4) eliminating needless paperwork by focusing documents on the major environmental issues affecting those decisions, including the use of adoption or incorporation by reference of previous, relevant NEPA analyses prepared by other agencies; (5) early integration of the NEPA process into all aspects of MDA planning to prevent disruption in decision making; (6) partnering or coordinating with agencies, organizations, and individuals whose specialized expertise improves the NEPA process; (7) clear and concise communication of data, documentation, and information; and (8) execution of the NEPA compliance process within the framework of the MDA's Environmental Management System.
(c) MDA will periodically (at least every seven years) review the effectiveness of its NEPA program and these implementing procedures, the appropriateness and usefulness of our categorical exclusions (CATEXs), the accuracy of predicted findings of no significant impact, the effectiveness of mitigation, the ramifications of actions both individually and cumulatively, and
(d) MDA will post NEPA implementing procedures, CATEXs, and summary information on our use of CATEXs for proposed actions on its public Web site.
(a) The MDA Director has overall authority to ensure MDA activities comply with NEPA and has final approval authority regarding EIS records of decision (RODs).
(b) The Agency Environmental Executive (EE) acts as the principal MDA advisor on NEPA-related requirements. The EE will: (1) Ensure NEPA compliance of MDA activities in accordance with MDA NEPA implementing procedures and other applicable NEPA guidance and regulations; (2) coordinate with MDA stakeholders for NEPA issues regarding program/element activities; (3) provide intra-agency and inter-agency liaison and coordination on NEPA-related matters; and (4) have signature authority for EA findings of no significant impact (FONSIs).
(c) The Chief, Environmental Management will: (1) Educate and train MDA staff to implement NEPA; (2) coordinate with MDA's EE to maintain a record of the MDA's environmental activities and advance the national environmental policy articulated in NEPA, other Federal statutes, regulations, and Executive Orders; (3) prepare MDA NEPA reviews; (4) submit
MDA will make diligent efforts to involve the public in implementing its NEPA procedures in accordance with 40 CFR 1501.4(b), 1506.6 and part 1503. When developing a plan to include the public and affected parties in the environmental analysis process, MDA will consider the following factors: (1) The magnitude of the environmental considerations associated with the proposed action; (2) the extent of expected public interest; and (3) any relevant questions of national concern.
A proposed action may fall into these five broad categories for environmental review:
(a)
(b)
(c)
MDA will document designated CATEXs in writing using a REC (Appendix C). An MDA REC is a signed statement submitted with project documentation that concisely documents that an MDA action has received environmental review. The REC briefly describes the proposed action and time period, identifies the MDA proponent and approving official(s), addresses the use of screening criteria, and demonstrates that a review was conducted to ensure that no extraordinary circumstances indicate the need for further analysis. Qualifications for a CATEX are described later in this section.
(d)
(e)
(a) If the proposed action qualifies as a CATEX and the screening criteria are met, the action can proceed. Appendix B lists MDA's CATEXs. Appendix C shows an MDA REC form to be used to document designated CATEXs.
(b) MDA may use a CATEX only when the following screening criteria are met: (1) The proposed action is a Federal action over which we have primary responsibility and, as described in its entirety, is covered by one or more CATEXs listed in Appendix B; (2) the proposed action does not involve any of the extraordinary circumstances described in paragraph (d) below; and (3) the proposed action does not involve using unproven technology that could potentially result in unknown impacts.
(c) Applying a CATEX to an action does not eliminate the need to meet other statutory or regulatory requirements including general conformity, federally-listed threatened or endangered species or their designated critical habitat, historic and cultural preservation, and safe drinking water requirements or other applicable Federal, state, or local regulatory requirements.
(d) “Extraordinary circumstances” arise when a typically categorically-excluded action has the reasonable likelihood to result in individually or cumulatively significant impacts on public health, safety, or the environment, based on the specific situation where the CATEX is applied. Extraordinary circumstances that preclude using a CATEX include: (1) A reasonable likelihood the proposed action would result in uncertain, unique, or unknown environmental risks, or is scientifically controversial; (2) a reasonable likelihood the proposed action would establish precedents or commit MDA to future actions with potential for significant impacts; (3) a reasonable likelihood the proposed action would threaten to violate Federal, state, or local environmental laws; (4) a reasonable likelihood the proposed action would adversely affect environmentally sensitive resources, such as, but not limited to, Federally-listed threatened and endangered species, their designated critical habitat, wilderness areas, floodplains, wetlands, aquifer recharge areas, coastal zones, wild and scenic rivers, and significant fish or wildlife habitat, unless the impact was permitted, mitigated, or addressed through another environmental review process, for example, the Clean Water Act or Coastal Zone Management Act; (5) a reasonable likelihood the proposed action would adversely affect known national natural landmarks, or cultural or historic resources, including, but not limited to, property listed on or eligible for the National Register of Historic Places, unless the impact was permitted, mitigated, or addressed through another environmental review process, such as the National Historic Preservation Act; or (6) a reasonable likelihood of causing an increase in surface transportation congestion that would exceed capacity of the supporting infrastructure or otherwise cause significant impacts to the human environment.
(e) MDA will review its CATEXs at least every seven years to determine whether modifications, additions, or deletions are appropriate, based on our experience and determination that environmental impacts of certain activities are not significant. If MDA acquires new responsibilities through legislation or administrative restructuring, we may propose new or modified CATEXs after gaining sufficient experience with the new activities to make a reasoned determination that any resulting environmental impacts are not significant. MDA will submit recommendations for modifications, additions, or deletions to CEQ for informal consultation and discussion.
(a) An EA is a concise public document agencies/services prepare to inform decision makers and determine if the proposed action has the potential to significantly impact the environment (which then would require the preparation of an EIS). In cases when no potentially significant impact is expected, an agency/service documents this determination with a FONSI. An EA may be prepared at any time to help agencies/services plan and make decisions. Typical MDA actions normally requiring an EA include: (1) New construction of facilities that involves more than five cumulative acres of new surface disturbance; (2) proposed actions that potentially result in significant changes to established land use; or (3) actions substantially altering ongoing MDA operations which could potentially lead directly, indirectly, or cumulatively to substantial environmental impacts.
(b) An EA is prepared to assess the extent of potential environmental impacts resulting from a proposed action and alternatives, and to determine whether or not the impacts are likely to be significant. The EA must include, at a minimum, the following information and analyses: (1) Purpose and need for the proposed action or activity; (2) description of the proposed action; (3) brief discussion of the alternatives considered, including the “no action” alternative and the “proposed action;” (4) brief discussion of the affected environment and region of influence; (5) analysis of the potential environmental impacts of the proposed action and alternatives; (6) list of preparers, agencies and persons consulted; and (7) references.
(c) The analysis of potential environmental impacts (item (b)(5) above) includes an assessment of the direct, indirect, and cumulative impacts that can reasonably be expected from taking the proposed action or reasonable alternatives. When there are direct or indirect effects on an aspect of the environment from the proposed action, then MDA must also consider cumulative effects. Cumulative effects are impacts on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. Actions by Federal agencies, non-Federal agencies and private parties must be included when considering cumulative effects, as specified in 40 CFR 1508.7.
(d) The analysis for an EA leads to a determination to either issue a FONSI or a NOI to prepare an EIS.
(e) MDA should coordinate preparing the EA with other agencies (e.g., Federal, state, local, or tribal governments) when the action involves resources they manage or protect. MDA may invite agencies with jurisdiction by law and with special expertise, to participate as cooperating agencies (40 CFR 1501.6, 1508.5, 1508.15, and 1508.26). Factors for determining whether to invite, decline, or end cooperating agency status are in Attachment 1 of the CEQ Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (January 30, 2002).
(f) MDA may request public involvement in preparing the EA or revising or supplementing the EA, or choose to involve the public after the EA is prepared. MDA may use scoping but, would not publish the notice in the FR unless the proposed action was of national interest. MDA will select the type and format for public involvement to best support on-time and meaningful public input and coordinate it with the
(a) MDA will prepare a FONSI as specified in 40 CFR 1508.13 to briefly describe why a proposed action will not have a significant effect on the environment and thus will not require an EIS.
(b) MDA will make the proposed final EA and proposed FONSI available to the affected public, organizations, and individuals requesting them, and to whomever we have reason to believe is interested in the action through the various methods outlined in 40 CFR 1506.6 as we deem appropriate. The public, other Federal, tribal, and state agencies and other government entities will be given an opportunity to review and comment on the proposed final EA and unsigned FONSI. The time period for public review will reflect the magnitude of the proposed action and its potential for controversy about environmental effects. A 30-day public review is normal, unless it is unwarranted due to the limited scope of the proposed action and/or lack of potential controversy about environmental effects. MDA will make EAs and FONSIs available on our public Web site and provide an electronic copy upon request. When MDA determines that it will enhance the opportunity for public review, we will provide hard copies to local public libraries or other public depositories.
(c) After closure of the public review period and considering the comments received, the MDA Environmental Executive will determine whether to revise the EA, sign the FONSI, start preparing an EIS, or modify or stop considering the proposed action.
(d) MDA will make the final EA and signed FONSI available on our public Web site.
(a) Classes of activities that normally require an EIS (40 CFR 1501.4) are: (1) Construction and operations of a major new deployment site or test range, and (2) development, testing and employment of a major new missile defense technology with unknown or potentially significant effects on the environment.
(b) A draft and final EIS will include: (1) The purpose and need for the proposed action and reasonable alternatives (as specified in 40 CFR 1502.13); (2) reasonable alternatives, including the preferred alternative and no-action alternative and designation of the preferred alternative (as specified in 40 CFR 1502.14); (3) the environment affected or created by the alternatives (as specified in 40 CFR 1502.15); (4) the probable environmental impacts from alternatives including the proposed action and measures (if any) to minimize impacts (as specified in 40 CFR 1502.16); and (5) a list of the major preparers of the EIS (as specified in 40 CFR 1502.17). EIS scope and detail should be reasonably related to the scope and the probable environmental impacts of the proposed action and alternative actions (40 CFR part 1502).
(c) Once MDA decides to prepare an EIS, we will start scoping (as specified in 40 CFR 1501.7). During scoping, participants help identify the range of actions, alternatives and impacts to consider (40 CFR 1508.25). MDA will invite affected agencies and interested persons to help determine the significant issues and alternatives to be addressed. The scoping phase of the NEPA process, as part of project planning, will include identifying aspects of the proposal that may have a significant effect or involve controversy concerning environmental effects. Scoping will ensure the NEPA analyses are useful for the decision maker.
(d) As soon as practical after deciding to prepare an EIS and before scoping, MDA will publish a notice of intent (NOI) to prepare an EIS in the FR (as specified in 40 CFR 1501.7). This NOI (as specified in 40 CFR 1508.22) will describe the purpose and need for the proposed action, and any reasonable alternatives and potential environmental impacts associated with the action that are available at this early stage of the NEPA process. Those impacts that tentatively are determined not to be significant and not warrant discussion in detail in the EIS may be identified. If a public scoping meeting will be held, the notice will state when and where. The NOI will identify the MDA point of contact who can supply more information about the action and to whom comments should be sent. There will normally be a public input period of 30 days from the date of publication of the NOI in the FR to allow other interested agencies and the public an opportunity to review and comment. Based on input received, MDA will determine if any additions or modifications to the schedule or scope of the EIS are appropriate. MDA will consider, in scoping the NEPA analysis and developing a draft EIS, the extent to which the greenhouse gas emissions caused by a proposed action should be estimated and evaluated.
(e) Analyzing potential environmental impacts includes assessing the direct, indirect, and cumulative impacts that can reasonably be expected from taking the proposed action or reasonable alternatives. When there are direct or indirect effects on an aspect of the environment, then MDA must also consider cumulative effects. Cumulative effects are impacts on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. Actions by Federal and non-federal agencies and private parties must be included when considering cumulative effects (as specified in 40 CFR 1508.7).
(f) MDA should coordinate preparing the EIS with other agencies when the action involves resources they manage or protect. MDA generally will invite those agencies with jurisdiction by law to participate as cooperating agencies. MDA may also invite them if they lack such jurisdiction, in addition to other agencies with special expertise, as cooperating agencies (40 CFR 1501.6 and 1508.5). Factors for determining whether to invite, decline, or end cooperating agency status are in Attachment 1 of the CEQ Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act (January 30, 2002).
(a) MDA will prepare a draft environmental impact statement (DEIS) (as specified in 40 CFR 1502.9) in the format recommended in the CEQ regulations at 40 CFR 1502.10 unless there is a compelling reason to use another format.
(b) MDA will electronically file the DEIS with the Environmental Protection Agency (EPA) and request comments from any Federal agency that has jurisdiction by law, the public, native American tribes, or other interested Federal, state, and local agencies (as specified in 40 CFR 1503.1). MDA will provide a minimum of 45 days for public comment on the DEIS. The comment period will begin on the day of publication of the EPA-issued Notice of Availability (NOA) in the FR (40 CFR 1506.10).
After MDA internal approval, we will circulate the final environmental impact statement (FEIS) (as specified in 40 CFR 1502.19). MDA will transmit the FEIS to every person, organization, or agency from which we received substantive comments on the draft and file the FEIS
(a) After filing the FEIS with the EPA, a ROD will be prepared (as specified in 40 CFR 1505.2) unless MDA announces that we are withdrawing the proposed action.
(b) MDA will make the ROD available on the MDA public Web site. MDA will also make the ROD available to the public through the various methods outlined in 40 CFR 1506.6, as appropriate.
(c) An action for which an EIS was approved will not start until: (1) 30 days after the EPA-issued notice of availability (NOA) that the final EIS was published in the FR; or (2) 90 days after the DEIS NOA was published in the FR by the EPA, whichever provides the public with the most notice.
When MDA reviews actions covered in an existing EA or EIS that we prepared, we may write a memorandum for record (MFR) to document that review. When MDA is a cooperating agency in preparing an EIS, we may adopt the lead agency's EIS without recirculating the EIS as a draft or as a final EIS. MDA may do this when, after an independent review, we conclude and document in an MFR that the lead agency adequately addressed the adopting agency's comments and suggestions. Similarly, when MDA is a cooperating agency in preparing an EA, we may adopt the EA without recirculating the EA when, after an independent review, we conclude and document in an MFR that the lead agency adequately addressed the adopting agency's comments and suggestions (CEQ Guidance Memorandum for Heads of Federal Department and Agencies: Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act, March 6, 2012; 40 CFR 1506.3).
MDA must maintain the administrative record for the environmental analysis performed. The administrative record must be retained by MDA for seven years after completing the action, unless the action involves controversy concerning environmental effects or is of a nature that warrants keeping it longer. The administrative record includes all supporting documents and information used to make the decision. This administrative record should include, but is not limited to: (1) Maps and or documents relevant to developing an EA or EIS; (2) formal communication by a consulting or coordinating agency office; (3) studies and inventories of affected environmental resources; (4) correspondence with regulatory agencies; (5) correspondence with and comments from, private citizens, tribes, local governments, and other individuals and agencies contacted during public involvement; and (6) confirmation of publications and transcripts of any public hearing. MDA will prepare and maintain an index or table of contents for the administrative record.
(a) MDA will indicate whether mitigation measures (as described in 40 CFR 1508.20) will be implemented for the alternative selected in either the FONSI or ROD, what commitments MDA considered and selected, and who will be responsible for implementing, funding, and monitoring the mitigation measures.
(b) Where possible and appropriate because of amount, MDA will include the cost of mitigation as a line item in the budget for a proposed project. Upon request, MDA will also make the results of mitigation monitoring available to the public.
(c) MDA may “mitigate to insignificance” potentially significant environmental impacts found during preparation of an EA, instead of preparing an EIS. The FONSI for the EA will include these mitigation measures, which will be carried out as the project is implemented. If, for any reason, MDA later abandons or does not meet the mitigation commitments upon which the FONSI relied, we will prepare a supplemental environmental document before continuing the project. If potentially significant environmental impacts might result from any project revisions, MDA will prepare an EIS if we used an EA for the decision to proceed, or we will prepare a supplemental EIS, if we used an EIS for the decision to proceed.
(a) MDA will prepare a supplement to an EA or EIS in accordance with 40 CFR 1502.9(c), when there are substantial or significant new circumstances or information related to the proposed action, or to the environmental concerns of the proposed actions, which bear on the proposed action or its impacts. MDA may also prepare a supplement when the purposes of NEPA will be furthered by doing so.
(b) MDA prepares supplemental documents following the same general process as the original EA or EIS. No new scoping is required for a supplemental EIS; however, we may choose to conduct scoping (40 CFR 1502.9(c)(4)).
(c) When a supplemental EA or EIS is prepared, MDA will issue a new FONSI or ROD as appropriate.
When MDA is the lead agency (40 CFR 1501.5), we will invite Federal agencies with jurisdiction by law to serve as cooperating agencies. MDA may invite Federal, tribal, state and local agencies with special expertise to serve as cooperating agencies. The roles of lead and cooperating agencies are found in 40 CFR 1501.5, 1501.6, and 1508.5, and the definitions of jurisdiction by law and special expertise are found at 40 CFR 1508.15 and 1508.5.
The MDA may adopt an EA or EIS, or portion thereof, prepared by another agency where the MDA proposed action is substantially the same as the action described in the EA, in accordance with CEQ Guidance Memorandum for Heads of Federal Departments and Agencies: Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act, March 6, 2012, or EIS, in accordance with 40 CFR 1506.3(b). MDA will independently review the EA or EIS and determine whether it is current, satisfies the requirements of NEPA, and covers the proposed action. If the actions covered by the original NEPA analysis and the MDA proposed action are substantially the same, and MDA was not a cooperating agency, then we will reissue the EA or EIS as a final document and prepare its own FONSI or ROD, as appropriate.
MDA will incorporate material by reference to reduce paperwork and bulk. MDA will incorporate previous NEPA analyses or relevant material in an EA or EIS by citing and briefly describing the material, and ensuring that any material incorporated by reference will be made reasonably available for inspection by potentially interested persons within the time allowed for comment either in the EA, EIS, or on our Web site as specified in 40 CFR 1502.21.
MDA will use tiered environmental documents to eliminate repetitive discussions of the same issues and to focus on those issues relating to specific
(a) Classification of an action for national security does not relieve MDA from the requirements of NEPA. MDA will prepare, safeguard, and disseminate NEPA documents in accordance with MDA and DoD requirements for classified information (i.e., MDA Manual 5200.02-M “Information Security Program,” DoD Manual 5200.01 “DoD Information Security Program,” or current issuance).
(b) In accordance with DoD and MDA Security Policy, NEPA documents that include classified information/actions will be written so that the classified information/actions are included in separate appendix(es) so that the unclassified portions of the documents can be made available to the public.
(c) When classified information is such an integral part of the analysis of a proposal that MDA cannot produce a meaningful unclassified NEPA analysis, the MDA proponent, in consultation with the appropriate environmental offices, will form a team to review the classified NEPA analysis. This team will include environmental professionals to ensure the consideration of environmental effects is consistent with the letter and intent of NEPA, including public participation requirements for unclassified aspects.
MDA as a tenant will work with the host agency/service to fulfill MDA and the host's implementing regulations (or procedures) and guidance in complying with NEPA and related Executive Orders. The specific requirements of the agency/service making a decision supported by the NEPA analysis and documentation will apply. If multiple agencies will use the NEPA analysis and documentation, then the process followed in developing it will comply with the most stringent requirement in the respective NEPA implementing procedures and regulations.
Actions categorically excluded in the absence of extraordinary circumstances are listed below.
CATEX List:
B-1. Normal personnel, fiscal or budgeting, and administrative activities and decisions including those involving military and civilian personnel (for example, recruiting, processing, paying, and recordkeeping).
B-2. Preparing, revising, or adopting regulations, instructions, directives, or guidance documents including those that implement without substantial change the regulations, instructions, directives, or guidance documents from higher headquarters or other Federal agencies.
B-3. Decreases, increases, relocation, and realignment of personnel into existing Federally-owned or commercially-leased space that does not involve a substantial change affecting the supporting infrastructure or use of space (e.g., no increase in traffic beyond the capacity of the supporting network to accommodate such an increase).
B-4. Routine procurement of goods and services conducted in accordance with applicable procurement regulations, Executive Orders, and policies to support operations and infrastructure, including routine utility services and contracts.
B-5. Administrative study efforts involving no commitment of resources other than personnel and funding allocations. If any of these study efforts result in proposals for further action, those proposals must be considered separately by an appropriate CATEX or NEPA analysis. Examples include, but are not limited to: Studies to further administrative, personnel-related, architectural, engineering, safety, security, siting, and facility audit activities.
B-6. Studies, monitoring, data and sample collection, and information gathering that involve no permanent physical change to the environment. If any of these activities result in proposals for further action, those proposals must be considered by an appropriate CATEX or NEPA analysis. Examples include, but are not limited to:
a. Surveys for threatened and endangered species, wildlife and wildlife habitat, historic properties and archeological sites; wetland delineations; minimal water, air, waste, material, and soil sampling (e.g., grab samples).
b. Vulnerability, risk, and structural integrity assessments of infrastructure.
c. Environmental Baseline Surveys or Environmental Condition of Property Surveys.
d. Topographical surveying and mapping that does not require cutting and/or removal of trees.
B-7. Sampling, well drilling and installation, analytical testing, site preparation, and minimally intrusive physical testing. These activities could involve minor clearing and grubbing or movement of heavy equipment such as drill rigs. If any of these actions result in proposals for further actions, those proposals must be considered by an appropriate CATEX or NEPA analysis. Examples include, but are not limited to:
a. Sampling for asbestos-containing materials (ACMs), polychlorinated biphenyls (PCBs), and lead-based paint (LBP).
b. Topographical surveys and surveys for unexploded ordnance.
c. Minimally-intrusive geological, geophysical surveys, geo-technical activities, and seismic studies.
d. Minimally-intrusive sampling to determine if hazardous wastes, contaminants, pollutants, or special hazards are present.
e. Ground water monitoring wells, subsurface soil sampling, and soil borings (REC required).
B-8. Immediate response to the release or discharge of oil or hazardous materials in accordance with an approved Spill Prevention, Control, and Countermeasure (SPCC) Plan or Spill Contingency Plan, or that is otherwise consistent with the requirements of the EPA National Contingency Plan.
B-9. Temporary use of transportable power generators or operational support equipment when located in a previously disturbed area and when operated in compliance with applicable regulatory requirements.
B-10. Routine movement, handling, use, and distribution of materials, including hazardous materials or wastes moved, handled, or distributed in accordance with applicable regulations, such as the Resource Conservation and Recovery Act (RCRA), Occupational Safety and Health Administration (OSHA), and Hazardous Materials Transportation Act (HMTA).
B-11. Routine movement of mobile test assets (such as ships, aircraft, mobile sensors, telemetry, etc.) for routine missile defense test and evaluation; repair, overhaul or maintenance; or home port reassignments where no new support facilities are required.
B-12. Activities and operations to be conducted in an existing non-historic structure which are within the scope of and are compatible with the present functional
B-13. Acquisition, installation, modification, routine repair and replacement, and operation of utility (e.g., water, sewer, and electrical) and communication systems, mobile antennas, data processing cable and similar electronic equipment that use existing rights-of-way, easements, distribution systems, facilities, or previously disturbed land (REC required).
B-14. Acquisition, installation or minor relocation, operation and maintenance, or evaluation of physical security devices or controls to protect human or animal life and to enhance the physical security of existing critical assets in compliance with applicable Federal, tribal, state and local requirements to protect the environment. Examples include, but are not limited to:
a. Motion detection systems.
b. Raptor electrocution prevention devices.
c. Lighting.
d. Remote video surveillance systems.
e. Access controls.
f. Physical barriers, fences, grating, on or adjacent to existing facilities (REC required).
B-15. Maintenance of archaeological, historical, and endangered or threatened species avoidance markers, fencing, and signs.
B-16. Road or trail construction and repair on existing rights-of-ways or in previously disturbed areas which do not result in a change in functional use. Runoff, erosion, and sedimentation are controlled through implementation of best management practices (REC required).
B-17. Routine repair and maintenance of buildings, vessels, aircraft, grounds, and other facilities and equipment which do not result in a change in functional use or a significant impact on a historically significant element or setting. Examples include, but are not limited to: Repair of roofs, doors, windows, or fixtures, localized pest management, and minor erosion control measures.
B-18. New construction or equipment installation or alterations (interior and exterior) to or construction of an addition to an existing structure that is similar to existing land use if the area to be disturbed has no more than 5.0 cumulative acres of new surface disturbance. The following conditions must be met:
a. The structure and proposed use are compatible with applicable Federal, tribal, state, and local planning and zoning standards.
b. The site and scale of construction or improvement is consistent with those of existing, adjacent, or nearby buildings.
c. The construction or improvement will not result in uses that exceed existing support infrastructure capacities (roads, sewer, water, parking, etc.).
This does not include construction of facilities for the transportation, distribution, use, storage, treatment, and disposal of solid waste or hazardous waste (REC required).
B-19. Demolition of non-historic buildings, structures, or other improvements and repairs that result in disposal of debris there-from, or removal of a part thereof for disposal, in accordance with applicable regulations, including those regulations applying to removal of ACM, PCBs, LBP, and other special hazard items (REC required).
B-20. Research, testing, and operations conducted at existing facilities and plants or laboratories (including contractor-operated laboratories and plants) and in compliance with all applicable safety, environmental, and natural conservation laws. Examples include, but are not limited to: Wind tunnels, high-energy lasers, remote-sensing instruments, vacuum chambers, high-altitude simulator facilities, and propellant testing facilities.
B-21. Routine installation and use of radars, telemetry systems, communications equipment, and other essentially similar facilities and equipment within a launch facility, mobile platform, military installation, training area, or previously disturbed area that conform to current American National Standards Institute/Institute of Electrical and Electronics Engineers (ANSI/IEEE) guidelines for maximum permissible exposure to electromagnetic fields (REC required).
Department of the Army, DoD.
Notice of Intent.
In compliance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i), the Department of the Army hereby gives notice of its intent to grant to III HOLDINGS 3, LLC; a corporation having its principle place of business at 2711 Centerville Rd., Suite 400, Wilmington, DE 19808, exclusive licenses relative to the following U.S. Patents and Patent Applications:
• 7,343,362; “Low complexity classification from a single unattended ground sensor node”; 23 September 2004.
• 7,919,764; “Method and apparatus for enhanced terahertz radiation from high stacking fault density”; 5 May 2009.
• 12/639279; “Distributed Geospatial Communications System”; 16 December 2009.
• 8,269,200; “Terahertz radiation device and method of generating terahertz radiation”; 8 March 2011.
• 7,233,142; “Planer reader of non-erasable magnetic media and local permeability”; 2 September 2004.
• KR 10-2011-7017044; “Distributed Geospatial Communications System”; 23 December 2009.
• IL 213603; “Distributed Geospatial Communications System”; 21 July 2011.
The prospective exclusive licenses may be granted unless within fifteen (15) days from the date of this published notice, the U.S. Army Research Laboratory receives written objections including evidence and argument that establish that the grant of the licenses would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by the U.S. Army Research Laboratory within fifteen (15) days from the date of this published notice will also be treated as objections to the grant of the contemplated exclusive licenses.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Send written objections to Thomas Mulkern, U.S. Army Research Laboratory, Office of Research and Technology Applications, ATTN: RDRL-DPP, B321, Aberdeen Proving Ground, MD 21005-5425.
Thomas Mulkern, (410) 278-0889.
None.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of Availability.
The U.S. Army Corps of Engineers (COE), Wilmington District, Wilmington Regulatory Division is issuing this notice to advise the public that a State of North Carolina funded Final Environmental Impact Statement (FEIS) has been prepared for a road improvement project starting at Military Cutoff Road in New Hanover County to north of Hampstead along US 17, Pender County, NC (TIP Projects U-4751 and R-3300).
Written comments on the FEIS will be received until September 8, 2014.
Mr. Brad Shaver, Regulatory Project Manager, Wilmington Regulatory Field Office, 69 Darlington Ave., Wilmington, NC 28403 or Mr. Jay McInnis, Project Engineer, North Carolina Department of Transportation, 1548 Mail Service Center, Raleigh, NC 27699-1548.
Questions about the proposed action and FEIS can be directed to Mr. Brad Shaver, COE—Regulatory Project Manager, telephone: (910) 251-4611 or Mr. Jay McInnis Jr., P.E., NCDOT—Project Engineer, telephone: (919) 707-6029.
The COE in cooperation with the North Carolina Department of Transportation prepared a Draft Environmental Impact Statement (DEIS), originally published in 2011, on a proposal to make transportation improvements to the US 17 and Market Street (US 17 Business) corridor in northern New Hanover and southern Pender Counties. Two North Carolina Department of Transportation Improvement Program (TIPs U-4751 and R-3300) projects are being evaluated as part of the US 17 Corridor Study.
The purpose of the US 17 Corridor Study project is to improve the traffic carrying capacity and safety of the US 17 and Market Street corridor in the project area. The project study area is roughly bounded on the west by I-40, on the north by the Northeast Cape Fear River, Holly Shelter Game Lands to the east, and Market Street and US 17 to the south.
This project is being reviewed through the Merger 01 process designed to streamline the project development and permitting processes, agreed to by the COE, North Carolina Department of Environment and Natural Resources (Division of Water Quality, Division of Coastal Management), Federal Highway Administration (for this project not applicable), and the North Carolina Department of Transportation and supported by other stakeholder agencies and local units of government. The other partnering agencies include: U.S. Environmental Protection Agency; U.S. Fish and Wildlife Service; N.C. Wildlife Resources Commission; N.C. Department of Cultural Resources; and the Wilmington Metropolitan Planning Organization. The Merger process provides a forum for appropriate agency representatives to discuss and reach consensus on ways to facilitate meeting the regulatory requirements of Section 404 of the Clean Water Act during the NEPA/SEPA decision-making phase of transportation projects.
Through input from the public and resource agencies the project was changed to include a second interchange at the northern terminus. These changes were considered substantial changes and the public was given opportunity again to comment through the release of a supplement Draft EIS published in October 2013. Comments were received on both the Draft and Supplement Draft EIS which have been addressed in this FEIS. The original Draft EIS, Supplement DEIS, and FEIS is available for review on the project Web page:
Any person having difficulty in viewing the document online can contact the COE project manager or the NCDOT project manager for a CD copy of the document.
After distribution and review of Final EIS, the Applicant understands that the U.S. Army Corps of Engineers will issue a Record of Decision (ROD) for the
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the FEIS should be directed to the U.S. Army Corps of Engineers at the address provided. The Wilmington District will periodically issue Public Notices soliciting public and agency comment on the proposed action and alternatives to the proposed action as they are developed.
Department of the Army, DoD.
Notice of Advisory Committee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Board on Coastal Engineering Research. This meeting is open to the public.
Colonel Jeffrey R. Eckstein, Designated Federal Officer (DFO) and Executive Secretary, U.S. Army Engineer Research and Development Center, Waterways Experiment Station, 3909 Halls Ferry Road, Vicksburg, MS 39180-6199, phone 601-634-2513, or
The meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150. The Board on Coastal Engineering Research provides broad policy guidance and reviews plans for the conduct of research and the development of research projects in consonance with the needs of the coastal engineering field and the objectives of the U.S. Army Chief of Engineers.
On Wednesday morning, September 10, 2014, the Board will reconvene to discuss Innovative Dredge Material Management and Coastal System Resiliency. Presentations will include Ocean Beach Nearshore Placement; Fine-Grained Sediment in Coastal Sediment Management: Deal Breaker or Deal Maker; Long-Term Management Strategy Modeling for Optimization of Dredged Material Placement; North Atlantic Coast Comprehensive Study (NACCS) Update; Coastal Resilience: The Environment, Infrastructure, and Human Systems, Outcomes and Actions of the May Conference; and Best Practices for Sustainable and Resilient Coastal Development through Consolidation of Local Sea Level Dynamics. The afternoon session continues with the Coastal System Resiliency panel. Presentations include Climate Change and Climate Change Adaptation; Past and Future of Nearshore Processes Research, Workshop Results; California Coastal Commission—Sea Level Rise; and The CERB Resilience Charge: A Framework for Quantifying Resilient Coastal Systems.
The Board will meet in Executive Session to discuss ongoing initiatives and future actions on Thursday morning, September 11, 2014.
Federal Student Aid, Department of Education.
Notice.
In accordance with section 427A of the Higher Education Act of 1965, as amended, the Chief Operating Officer for Federal Student Aid announces the interest rates for the period July 1, 2014, through June 30, 2015, for certain loans made under the Federal Family Education Loan (FFEL) Program prior to July 1, 2010. The Chief Operating Officer takes this action to give notice of FFEL Program loan interest rates to the public.
This notice is effective August 8, 2014.
Ian Foss, U.S. Department of Education, 830 First Street NE., Room 114I1, Washington, DC 20202. Telephone: (202) 377-3681 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.
Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under
Section 427A of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1077a), provides formulas for determining the interest rates charged to borrowers on loans made under the Federal Family Education Loan (FFEL) Program, including Federal Subsidized and Unsubsidized Stafford Loans, Federal PLUS Loans, and Federal Consolidation Loans.
The FFEL Program includes loans with variable interest rates and loans with fixed interest rates. Most loans made under the FFEL Program before July 1, 2006, have variable interest rates that change each year. In most cases, the variable interest rate formula that applies to a particular loan usually depends on the date of the first disbursement of the loan. The variable rates are determined annually and are effective for each 12-month period beginning July 1 of one year and ending June 30 of the following year.
Under section 427A(k) of the HEA, FFEL Program loans first disbursed on or after July 1, 2006, have a fixed interest rate.
In the case of some Federal Consolidation Loans, the interest rate is determined by the date on which the Federal Consolidation Loan application was received. Federal Consolidation Loans for which the application was received on or after October 1, 1998, have a fixed interest rate. This fixed rate is based on the weighted average of the loans that are consolidated, rounded up to the nearest higher 1/8 of one percent up to a maximum rate of 8.25 percent.
FFEL variable interest rates are based on formulas that use the bond equivalent rate of the 91-day Treasury bills auctioned at the final auction held before June 1 of each year plus a statutorily established add-on. These formulas apply to: All Federal Subsidized and Unsubsidized Stafford Loans first disbursed before October 1, 1992, that have been converted to variable rate loans; all Federal Subsidized and Unsubsidized Stafford Loans first disbursed on or after October 1, 1992, and before July 1, 2006; Federal PLUS Loans first disbursed on or after July 1, 1998, and before July 1, 2006; and Federal Consolidation Loans for which the Federal Consolidation Loan application was received on or after November 13, 1997, and before October 1, 1998. In each case, the calculated rate is capped by a maximum interest rate. The bond equivalent rate of the 91-day Treasury bills auctioned on May 27, 2014, which is used to calculate the interest rates on these loans, is 0.03 percent.
For Federal PLUS loans first disbursed before July 1, 1998, the interest rate is based on the weekly average of the one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System on the last day of the calendar week ending on or before June 26 of each year, plus a statutory add-on percentage. The calculated rate is capped by a maximum interest rate. The weekly average of the one-year constant maturity Treasury yield published on June 20, 2014, which is used to calculate the interest rate on these loans, is 0.10 percent.
This notice includes five charts containing specific information on the calculation of interest rates for loans made under the FFEL Program:
Chart 1 contains information on the interest rates for Federal Subsidized and Unsubsidized Stafford Loans that were made as fixed-rate loans, but were subsequently converted to variable-rate loans.
Chart 2 contains information on the interest rates for variable-rate Federal Subsidized and Unsubsidized Stafford Loans.
Chart 3 contains information on the interest rates for variable-rate Federal PLUS Loans.
Chart 4 contains information on the interest rates for fixed-rate Federal Consolidation Loans.
Chart 5 contains information on the interest rates for fixed-rate Federal Subsidized and Unsubsidized Stafford and PLUS Loans.
The FFEL Program loans represented by the second row of the chart were only made to “new borrowers” on or after July 23, 1992. Whether the FFEL Program loans represented by the third through sixth rows of the chart were made to a specific borrower depends on the interest rate on a borrower's existing loans at the time that the borrower received the loans between July 23, 1992 and prior to July 1, 1994.
In Charts 2 and 3, a dagger following a date in a cohort field indicates that the trigger for the rate to apply is a period of enrollment for which the loan was intended either “ending before” or “beginning on or after” the date in the cohort field.
The FFEL Program loans represented in the first row in Chart 2 were only made to “new borrowers” on or after October 1, 1992. The FFEL Program loans represented in the second row in Chart 2 were only made to “new borrowers” on or after July 1, 1994. The FFEL Program loans represented in the third row in Chart 2 must—in addition to having been first disbursed on or after July 1, 1994, and before July 1, 1995—have been made for a period of enrollment that began on or included July 1, 1994.
In Charts 3 and 4, an asterisk following a date in a cohort field indicates that the relevant trigger is an application for a Federal Consolidation Loan being received either “on or after” or “before” the date in the cohort field. For example, the sixth row in Chart 3 describes the interest rate for a Federal Consolidation Loan for which the application was received on or after November 13, 1997, but before October 1, 1998.
The last row in Chart 3 refers to portions of Federal Consolidation Loans attributable to loans made by the U.S. Department of Health and Human Services under subpart I of part A of title VII of the Public Health Service Act.
No new loans have been made under the FFEL Program since June 30, 2010.
Electronic Access to This Document: The official version of this document is the document published in the
You may also access documents of the Department published in the
20 U.S.C. 1071 et seq.
Federal Student Aid, Department of Education.
Notice.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.268.
This notice is effective August 8, 2014.
In accordance with section 455(b)(9) of the Higher Education Act of 1965, as amended, the Chief Operating Officer for Federal Student Aid announces the interest rates for the period July 1, 2014, through June 30, 2015, for loans made under the William D. Ford Federal Direct Loan (Direct Loan) Program prior to July 1, 2013. The Chief Operating Officer takes this action to give notice of Direct Loan interest rates to the public.
Ian Foss, U.S. Department of Education, 830 First Street NE., Room 114I1, Washington, DC 20202. Telephone: (202) 377-3681 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.
Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under
Section 455(b) of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1087e(b)), provides formulas for determining the interest rates charged to borrowers for loans made under the Direct Loan Program including: Federal Direct Subsidized Stafford Loans (Direct Subsidized Loans); Federal Direct Unsubsidized Stafford Loans (Direct Unsubsidized Loans); Federal Direct PLUS Loans (Direct PLUS Loans); and Federal Direct Consolidation Loans (Direct Consolidation Loans)(collectively, “Direct Loans.”).
The Direct Loan Program includes loans with variable interest rates and loans with fixed interest rates. Most loans made under the Direct Loan Program before July 1, 2006, have variable interest rates that change each year. In most cases, the variable interest rate formula that applies to a particular loan depends on the date of the first disbursement of the loan. The variable rates are determined annually and are effective for each 12-month period beginning July 1 of one year and ending June 30 of the following year.
Under section 455(b) of the HEA, Direct Loans first disbursed on or after July 1, 2006, have a fixed interest rate.
In the case of some Direct Consolidation Loans, the interest rate is determined by the date on which the Direct Consolidation Loan application was received. Direct Consolidation
Under section 455(b) of the HEA, the Direct Loan variable interest rates are based on formulas that use the bond equivalent rates of the 91-day Treasury bills auctioned at the final auction held before June 1 of each year, plus a statutory add-on percentage. These formulas apply to: all Direct Subsidized Loans and Direct Unsubsidized Loans; Direct Consolidation Loans for which the application was received on or after July 1, 1998, and before February 1, 1999; and Direct PLUS Loans disbursed on or after July 1, 1998. In each case, the calculated rate is capped by a maximum interest rate. The bond equivalent rate of the 91-day Treasury bills auctioned on May 27, 2014, which is used to calculate the interest rates on these loans, is 0.03 percent.
In addition, under section 455(b)(4) of the HEA, the interest rate for Direct PLUS Loans that were first disbursed on or after July 1, 1994, and before July 1, 1998, is based on the weekly average of the one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System on the last day of the calendar week ending on or before June 26 of each year, plus a statutory add-on percentage. The calculated rate is capped by a maximum interest rate. The weekly average of the one-year constant maturity Treasury yield published on June 20, 2014, which is used to calculate the interest rate on these loans, is 0.10 percent.
This notice includes five charts containing specific information on the calculation of the interest rates for loans made under the Direct Loan Program prior to July 1, 2013. We published a separate notice containing the interest rates for Direct Loans made for the current award year on July 1, 2014 (See 79 FR 37301).
Chart 1 contains information on the interest rates for variable-rate Direct Subsidized and Direct Unsubsidized Loans.
Chart 2 contains information on the interest rates for variable-rate Direct PLUS Loans.
Chart 3 contains information on the interest rates for variable-rate Direct Subsidized Consolidation Loans and Direct Unsubsidized Consolidation Loans.
Chart 4 contains information on the interest rates for variable-rate Direct PLUS Consolidation Loans.
Chart 5 contains information on the interest rates for fixed-rate Direct Subsidized, Direct Unsubsidized, and Direct PLUS Loans, and Direct Consolidation Loans.
In Charts 3 through 5, an asterisk following a date in a cohort field indicates that the trigger for the rate to apply is an application for a Direct Consolidation Loan being received either “on or after” or “before” the date in the cohort field. For example, the fourth row in Chart 3 describes the interest rate for Direct Subsidized and Unsubsidized Consolidation Loans for which the application was received before October 1, 1998, and that were first disbursed on or after October 1, 1998.
Interest rates for Direct Loans first disbursed on or after July 1, 2013, are published in a separate
• For Direct Loans first disbursed on or after July 1, 2013, and prior to July 1, 2014, see 78 FR 59011.
• For Direct Loans first disbursed on or after July 1, 2014, and prior to July 1, 2014, see 79 FR 37301.
You may also access documents of the Department published in the
20 U.S.C. 1087 et seq.
Office of Elementary and Secondary Education, Department of Education.
Final waiver and extension of the project period.
For the 36-month projects funded in fiscal year (FY) 2011 under the Training and Advisory Services—Equity Assistance Centers (EACs) program, the Secretary waives the requirements that generally prohibit project period extensions involving the obligation of additional Federal funds. The Secretary also extends the project period of these grants for up to an additional 24 months. This enables the 10 current grantees under the EACs program to continue to receive Federal
The waiver and extension of the project period are effective August 8, 2014.
Jenelle V. Leonard, U.S. Department of Education, 400 Maryland Avenue SW., Room 3W203, Washington, DC 20202-6400. Telephone: (202) 401.0039 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.
On April 28, 2014, we published a notice in the
In the April 2014 proposed waiver, the Secretary invited comments on the proposed waiver and extension of the project period. We received 49 comments in response.
An analysis of the comments received in response to the April 2014 proposed waiver follows.
The EACs program awards grants through cooperative agreements to eligible entities to operate 10 regional EACs. The EACs provide technical assistance and training at the request of school boards and other governmental agencies responsible for the preparation, adoption, and implementation of plans for the desegregation of public schools and the development of effective methods of coping with unique educational problems occasioned by desegregation. In this context, “desegregation” or “equity” refers to segregation based on race, sex, or national origin. The EACs (formerly the Desegregation Assistance Centers) assist States, districts, and public schools in providing effective instruction to all students and specifically to those students for whom disparities in achievement persist.
The EACs are authorized by title IV of the Civil Rights Act of 1964 (42 U.S.C. 2000c) and operate under the implementing regulations at 34 CFR parts 270 and 272. These regulations identify, among other components of the program, the 10 regions to be served by the EACs, eligible recipients of EAC assistance, the criteria used to make a grant, how the amount of the grant is determined, and the conditions that must be met by the grant recipient.
The geographic regions served by the EACs are:
Region I: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.
Region II: New Jersey, New York, Puerto Rico, and the Virgin Islands.
Region III: Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia.
Region IV: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee.
Region V: Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
Region VI: Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
Region VII: Iowa, Kansas, Missouri, and Nebraska.
Region VIII: Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming.
Region IX: Arizona, California, and Nevada.
Region X: Alaska, American Samoa, Guam, Hawaii, Idaho, Northern Mariana Islands, Oregon, The Federated States of Micronesia, The Republic of the Marshall Islands, The Republic of Palau, and Washington.
On March 10, 2011, we published in the
For those EACs, the Secretary waives the requirements in 34 CFR 75.261(a) and (c)(2), which prohibits the extension of project periods involving the obligation of additional Federal funds, and extends the project period for the current EACs for up to 24 months. This will allow the 10 current EAC grantees to continue to receive Federal funding through FY 2015 and possibly through FY 2016.
We are waiving the requirements in 34 CFR 75.261(a) and (c)(2) and extending the project period for the current EAC grantees. Based on the grantees' performance, public comments, and a 2013 survey of EAC clients conducted by the Federal Research Division of the Library of Congress in which 94 percent of the respondents rated the quality of the EAC products and services they received during the 2012-2013 school year as “high” or “very high,” we have concluded that the existing EACs are providing high-quality services. Therefore, it would not be in the public interest to incur the disruption in services associated with holding a new EACs competition in FY 2014. It would be more effective to maintain continuity of the high-quality services offered by these grantees to their clients rather than transition to new grantees only three years after the FY 2011 awards. These services include disseminating information on successful education practices and legal requirements related to nondiscrimination on the basis of race, sex, and national origin in educational programs; training designed to develop educators' skills in specific areas such as identification of race and sex bias in instructional materials; technical assistance in the identification and selection of appropriate educational programs to meet the needs of limited English proficient students; addressing disproportionality in schools among students and teachers; and instructing school officials on how to prevent sexual harassment and combat biases. In addition, issuing continuation awards, instead of holding a new competition,
We will fund the extended project period using FY 2014 funds. In addition, we may also extend the project period for a second year, using FY 2015 funds that Congress appropriates under the current statutory authority.
Under this waiver and extension of the project period—
(1) Current grantees will be authorized to receive EAC continuation awards annually for up to an additional two years.
(2) We will not announce a new EAC competition or make new EAC grant awards in FY 2014 and possibly in FY 2015.
(3) During the extension period, any activities carried out must be consistent with, or be a logical extension of the scope, goals, and objectives of each grantee's approved application from the 2011 EAC competition.
(4) Each grantee that receives a continuation award must also continue to comply with the requirements established in the program regulations and the 2011 EAC NIA.
(5) All requirements applicable to continuation awards for current EAC grantees and the requirements in 34 CFR 75.253 will apply to any continuation awards received by current EAC grantees, i.e., each grantee must demonstrate substantial progress performing its approved grant activities, as evidenced through program narratives, budgets and budget narratives, and performance reports.
The Secretary certifies that the waiver and extension and the activities required to support additional years of funding will not have a significant economic impact on a substantial number of small entities. The entities that will be affected by this proposed waiver and extension of the project period are the 10 current EAC grantees receiving Federal funds and any other potential applicants.
The Secretary certifies that the waiver and extension will not have a significant economic impact on these entities because the waiver and extension impose minimal compliance costs to extend projects already in existence, and the activities required to support the additional years of funding will not impose additional regulatory burdens or require unnecessary Federal supervision.
This proposed waiver and extension does not contain any information collection requirements.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
42 U.S.C. 2000c-2000c-2, 2000c-5.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Western Area Power Administration, DOE.
Notice of Proposed Power Rates.
The Western Area Power Administration (Western) Loveland Area Projects' (LAP) Rate Schedule L-F9 expires December 31, 2014. LAP consists of the Fryingpan-Arkansas Project (Fry-Ark) and the Pick-Sloan Missouri Basin Program (P-SMBP)—Western Division, which were integrated for marketing and rate-making purposes in 1989. Western is proposing modifications to the charge components in Rate Schedule L-F9 in order to true up the base and drought adder charges, which require a minor rate adjustment process. The revenue requirement and the total rate charges in the firm electric service rate schedule are not changing from Rate Schedule L-F9 and will continue to provide sufficient revenue to pay all annual costs, including interest expense, and repay investments within the allowable periods. If approved, the proposed Rate Schedule L-F10 will become effective on January 1, 2015, and will remain in effect through December 31, 2019. Publication of this
The consultation and comment period will begin today and will end September 8, 2014. Western will accept written comments any time during the consultation and comment period.
Written comments and requests to be informed of Federal Energy Regulatory Commission (FERC) actions concerning the rates submitted by Western to FERC for approval should be sent to: Mr. Bradley S. Warren, Regional Manager, Rocky Mountain Region, Western Area Power Administration, 5555 East Crossroads Boulevard, Loveland, CO 80538-8986 or email
Ms. Sheila D. Cook, Rates Manager, Rocky Mountain Region, Western Area Power Administration, 5555 East Crossroads Boulevard, Loveland, CO 80538-8986, telephone (970) 461-7211, email
On December 16, 2009, the Deputy Secretary of Energy approved, on an interim basis, Rate Schedule L-F9 under Rate Order No. WAPA-146 for the period beginning January 1, 2010, and ending December 31, 2014 (74 FR 67191-67197 (Dec. 18, 2009)).
Under the current rate methodology, rates for LAP firm electric service are designed to recover an annual revenue requirement that includes investment repayment, interest, purchase power, operation and maintenance, and other expenses within the allowable period. The annual revenue requirement continues to be allocated equally between capacity and energy.
Western is proposing to true up the base and drought adder components of the rate schedule and to place a new rate schedule into effect for the 5-year period beginning January 1, 2015, through December 31, 2019. The proposed true up updates the base component to represent present costs and lowers the drought adder component to represent present drought costs. Over the past 5-year rate period, the P-SMBP costs included in the LAP drought adder have decreased as the actual deficits taken were less than projected when the current charges were placed into effect. Additionally, there has been P-SMBP drought costs repaid ahead of schedule, which decreased the drought deficit interest expense. The portion of the LAP drought adder component coming from Fry-Ark ($200,000) is now going to $0, as Fry-Ark did not actually incur any deficits and Fry-Ark is not projecting any future non-timing purchases at this time. All historical drought-related costs for Fry-Ark have been repaid. In addition, base costs for both P-SMBP and Fry-Ark increased during that same period due to a new 5-year cost evaluation period, new investments and replacements, and inflationary costs. A comparison of the current and proposed components is listed in Table 2.
Over the last 5 years, Western has conducted its annual process of reviewing the sufficiency of the drought adder. With the rate schedule set to expire December 31, 2014, and the requirement of a public process to place a new rate schedule into effect, Western proposes to true up the base and drought adder components in the new rate schedule to current values. Updating the components does not change the overall charges, it only identifies what portion of the charge is driven by base and drought adder components.
The proposed modifications to the rate schedule for firm electric service, resulting in a true up of the base and drought adder components, as described above, constitute a minor rate adjustment, as defined by 10 CFR part 903.2(f). Western determined it is not necessary to hold a public information or public comment forum for this minor rate adjustment and, instead, held an informal public meeting via webinar, pursuant to 10 CFR part 903.17. Western will review all timely public comments and make amendments or adjustments to the proposal as appropriate. A proposed rate schedule will be forwarded to the Deputy Secretary of Energy for approval on an interim basis.
Western is establishing firm electric service rates for LAP under the Department of Energy (DOE) Organization Act (42 U.S.C. 7152); the Reclamation Act of 1902 (ch. 1093, 32 Stat. 388), as amended and supplemented by subsequent laws, particularly section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)) and section 5 of the Flood Control Act of 1944 (16 U.S.C. 825s); and other acts that specifically apply to the projects involved.
By Delegation Order No. 00-037.00A, effective October 25, 2013, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to Western's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand or to disapprove such rates to FERC. Existing DOE procedures for public participation in power rate adjustments (10 CFR part 903) were published on September 18, 1985.
All studies, comments, letters, memorandums, or other documents that Western initiates or uses to develop the proposed rates are available for inspection and copying at the Rocky Mountain Regional Office located at 5555 East Crossroads Boulevard, Loveland, Colorado. Many of these documents and supporting information are also available on Western's Web site under the “2015 Firm Rate Adjustment” section located at
Western held an informal public meeting on May 2, 2014, via a webinar to inform customers, Native American tribes, stakeholders, and other interested parties about the adjustment. The webinar was recorded and posted to the above referenced Western Web site.
In compliance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321,
Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
Western Area Power Administration, DOE.
Notice of Proposed Allocation.
The Western Area Power Administration (Western), a Federal power marketing agency of the Department of Energy (DOE), announces the Boulder Canyon Project (BCP) Post-2017 Resource Pool Proposed Allocation of Power (BCP Proposed Allocation) developed under the Conformed Power Marketing Criteria or Regulations for the Boulder Canyon Project (2012 Conformed Criteria) published in the
Entities interested in commenting on the BCP Proposed Allocation may submit written comments using the methods set out in the
Western will hold three public information forums on the BCP Proposed Allocation. The dates for the public information forums are:
1. August 26, 2014, 1 p.m., PDT, Las Vegas, Nevada.
2. August 27, 2014, 10 a.m., PDT, Ontario, California.
3. August 28, 2014, 10 a.m., MST, Tempe, Arizona.
Following the public information forums, Western will hold three public comment forums. The dates for the public comment forums are:
1. September 16, 2014, 1 p.m., PDT, Las Vegas, Nevada.
2. September 17, 2014, 10 a.m., PDT, Ontario, California.
3. September 18, 2014, 10 a.m., MST, Tempe, Arizona.
Written comments regarding the BCP Proposed Allocation should be sent to: Mr. Ronald E. Moulton, Acting Regional Manager, Desert Southwest Customer Service Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457. Comments may also be faxed to (602) 605-2490 or emailed to
The public information and public comment forums will be held at: The New Las Vegas Tropicana, 3801 Las Vegas Boulevard South, Las Vegas, Nevada; DoubleTree Ontario Airport, 222 N. Vineyard, Ontario, California; DoubleTree by Hilton Hotel Phoenix Tempe, 2100 S. Priest Drive, Tempe, Arizona.
Mr. Mike Simonton, Public Utilities Specialist, Desert Southwest Customer Service Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457, telephone number (602) 605-2675, email
The BCP was authorized by the Boulder Canyon Project Act of 1928 (43 U.S.C. 617) (BCPA). Under Section 5 of the BCPA, the Secretary of the Interior marketed the capacity and energy from the BCP under electric service contracts effective through May 31, 1987. In 1977, the power marketing functions of the Secretary of the Interior were transferred to Western by Section 302 of the Department of Energy Organization Act (42 U.S.C. 7152) (DOE Act). On December 28, 1984, Western published the Conformed General Consolidated Criteria or Regulations for Boulder City Area Projects (1984 Conformed Criteria) (49 FR 50582) to implement applicable provisions of the Hoover Power Plant Act of 1984 (43 U.S.C. 619) for the marketing of BCP power through September 30, 2017.
On December 20, 2011, Congress enacted the Hoover Power Allocation Act of 2011 (43 U.S.C. 619a) (HPAA), which provides direction and guidance in marketing BCP power after the existing contracts expire on September 30, 2017. On June 14, 2012, Western published the 2012 Conformed Criteria (77 FR 35671) to implement applicable provisions of the HPAA for the marketing of BCP power from October 1, 2017, through September 30, 2067. The 2012 Conformed Criteria formally established a resource pool defined as “Schedule D” to be allocated to new allottees. In accordance with the HPAA, Western allocated portions of Schedule D power to the Arizona Power Authority (APA) and the Colorado River Commission of Nevada (CRC), as described in the June 14, 2012,
After conducting a public process and in consideration of comments received, Western published final marketing criteria (78 FR 79436) and made a call for applications on December 30, 2013. Applications from those seeking an allocation of Schedule D power from Western were due on March 31, 2014. The BCP Proposed Allocation was determined by applying the final marketing criteria to the applications received during the call for applications. Western seeks comments on the proposed allocations during this comment period.
Western received 107 applications for Schedule D power. The final marketing criteria provide Native American tribes first consideration for an allocation of Schedule D sufficient to provide Federal hydropower up to 25 percent of their peak load when considering the amount of their load already served by existing Federal power resource allocations. Western received 33 applications from Native American tribes and 74 applications from non-tribal entities.
The BCP Proposed Allocation was established by applying the final marketing criteria. The 69,170 kW to be marketed in the BCA marketing area was distributed first. Application of the first consideration for Native American tribes resulted in 28,970 kW of contingent capacity to tribes. The remaining 40,200 kW was distributed to eligible applicants pro-rata based on peak load while normalizing the percentage of the applicants' peak loads served by Federal hydropower. The 11,510 kW to be marketed in the State of California was distributed to eligible California applicants pro-rata based on peak load while normalizing the percentage of the applicants' peak loads served by Federal hydropower inclusive of distributions of the 69,170 kW.
Capacity from the Post-2017 Resource Pool was allocated to eligible applicants under the final marketing criteria. Associated energy was determined by a pro-rata distribution to the allocated capacity consistent with HPAA Schedule D.
The BCP Proposed Allocation is as follows:
After applying the criteria to eligible applications received, the following applicants have not been assigned a proposed allocation due to the following reasons:
Two applicants did not provide sufficient historical load information to receive further consideration for an allocation and three applicants did not meet the general eligibility requirements. The Red Rock Agricultural Improvement and Power District Irrigation Water Delivery District of Pinal County, and the Pauma Band of Mission Indians failed to submit suitable historical load information for consideration in their application. The Silverbell Irrigation and Drainage District is a direct allottee of the APA for BCP power and therefore is not considered a new allottee eligible for Schedule D. The San Carlos Irrigation Project and the Department of Energy National Nuclear Security Administration are Federal agencies and are not considered eligible under Section 5 of the BCPA.
Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
In accordance with the DOE National Environmental Policy Act Implementing Procedures (10 CFR 1021), Western has determined that these actions fit within a class of action B4.1 Contracts, policies, and marketing and allocation plans for electric power, in Appendix B to Subpart D to Part 1021—Categorical Exclusions Applicable to Specific Agency Actions.
Western Area Power Administration, DOE.
Notice of proposed power rates.
The Western Area Power Administration (Western) Pick-Sloan Missouri Basin Program—Eastern Division (P-SMBP—ED) Rate Schedules P-SED-F11 and P-SED-FP11 for firm power and firm peaking power service expire December 31, 2014. Western is proposing modifications to the charge components in Rate Schedules P-SED-F11 and P-SED-FP11 in order to true up the base and drought adder charges, which require a minor rate adjustment process. The revenue requirement and the total rate charges in the firm power and firm peaking power service rate schedules are not changing from Rate Schedules P-SED-F11 and P-SED-FP11 and will continue to provide sufficient revenue to pay all annual costs, including interest expense, and repay investments within the allowable periods. If approved, the proposed Rate Schedules P-SED-F12 and P-SED-FP12 will become effective on January 1, 2015, and will remain in effect through December 31, 2019. Publication of this
The consultation and comment period will begin today and will end September 8, 2014. Western will accept written comments any time during the consultation and comment period.
Written comments and requests to be informed of Federal Energy Regulatory Commission (FERC) actions concerning the rates submitted by Western to FERC for approval should be sent to: Mr. Robert J. Harris, Regional Manager, Upper Great Plains Region, Western Area Power Administration, 2900 4th Avenue North, Billings, MT 59101-1266, or email
Ms. Linda Cady-Hoffman, Rates Manager, Upper Great Plains Region, Western Area Power Administration, 2900 4th Avenue North, Billings, MT 59101-1266, telephone: (406) 255-2920, email:
On December 14, 2009, the Deputy Secretary of Energy approved, on an interim basis, Rate Order No. WAPA-147 and Rate Schedules P-SED-F11 and P-SED-FP11 for the period beginning January 1, 2010, and ending December 31, 2014 (74 FR 67197-67204 (Dec. 18, 2009)).
Under the current rate methodology, rates for P-SMBP—ED firm power and firm peaking power service are designed to recover an annual revenue requirement that includes investment repayment, interest, purchase power, operation and maintenance, and other expenses within the allowable period.
Western is proposing to true up the base and drought adder components of the rate schedules and place new rate schedules into effect for the 5-year period, beginning January 1, 2015, through December 31, 2019. The proposed true up updates the base components to represent present costs and lowers the drought adder components to represent present drought costs. Over the past 5-year rate period, the P-SMBP costs included in the drought adder have decreased as the actual deficits taken were less than projected when the current charges were placed into effect. Additionally, there have been drought costs repaid ahead of schedule which decreased the drought deficit interest expense. Base costs increased during that same period due to a new 5-year cost evaluation period, new investments and replacements, and inflationary costs. A comparison of the current and proposed components is listed in Table 2.
Over the past 5 years, Western has conducted its annual process of reviewing the sufficiency of the drought adder. With the rate schedules set to expire December 31, 2014, and the requirement of a public process to place new rate schedules into effect, Western proposes to true up the base and drought adder components in the new rate schedules to current values. Updating the components does not change the overall charges. It only identifies what portion of the charge is driven by base and drought adder components.
The proposed modifications to the rate schedules for firm power and firm peaking power service, resulting in a true up of the base and drought adder components described above, constitute a minor rate adjustment, as defined by 10 CFR part 903.2(f). Western determined it is not necessary to hold a public information or public comment forum and, instead, held an informal public meeting via webinar for this minor rate adjustment, pursuant to 10 CFR 903.17. Western will review all timely public comments and make amendments or adjustments to the proposal as appropriate. The proposed rate schedules will be forwarded to the Deputy Secretary of Energy for approval on an interim basis.
Western is establishing firm power and firm peaking power service rates for P-SMBP—ED under the Department of Energy Organization Act (42 U.S.C. 7152); the Reclamation Act of 1902 (ch. 1093, 32 Stat. 388), as amended and supplemented by subsequent laws, particularly section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)) and section 5 of the Flood Control Act of 1944 (16 U.S.C. 825s); and other acts that specifically apply to the projects involved.
By Delegation Order No. 00-037.00A, effective October 25, 2013, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to Western's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand or to disapprove such rates to FERC. Existing DOE procedures for public participation in power rate
All studies, comments, letters, memorandums, or other documents that Western initiates or uses to develop the proposed rates are available for inspection and copying at the Upper Great Plains Regional Office, located at 2900 4th Avenue North, Billings, Montana. Many of these documents and supporting information are also available on Western's Web site under the “2015 Firm Rate Adjustment” section located at
Western held an informal public meeting on May 2, 2014, via webinar to inform customers, Native American tribes, stakeholders, and other interested parties about the proposed minor rate adjustment. The webinar was recorded and posted to the above referenced Western Web site.
In compliance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321,
Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
Environmental Protection Agency.
Notice of adequacy.
The Environmental Protection Agency (EPA) is notifying the public that the Agency has found that the motor vehicle emissions budgets (MVEBs) for ozone for the years 2014, 2017, and 2018 in the
This finding is effective August 25, 2014.
John Ungvarsky, U.S. EPA, Region IX, Air Division AIR-2, 75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 972-3963 or
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
Today's notice is simply an announcement of a finding that we have already made. EPA sent a letter to CARB on July 25, 2014 stating that the MVEBs for oxides of nitrogen (NO
Receipt of the MVEBs in the 2013 Sacramento Ozone Plan was announced on EPA's transportation conformity Web site on May 20, 2014. We received no comments in response to the adequacy review posting. The finding is available at EPA's transportation conformity Web site:
Transportation conformity is required by Clean Air Act section 176(c). EPA's conformity rule requires that transportation plans, transportation improvement programs, and projects conform to SIPs and establishes the criteria and procedures for determining whether or not they do conform. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The criteria by which we determine whether a SIP's MVEBs are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4) which was promulgated in our August 15, 1997 final rule (62 FR 43780, 43781-43783). We have further described our process for determining the adequacy of submitted SIP budgets in our July 1, 2004 final rule (69 FR 40004, 40038), and we used the information in these resources in making our adequacy determination. Please note that an adequacy review is separate from EPA's completeness review, and should not be used to prejudge EPA's ultimate approval action for the SIP. Even if we find a budget adequate, the SIP could later be disapproved.
42 U.S.C. 7401
Environmental Protection Agency.
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Underground Injection Control Program” (EPA ICR No. 0370.25, OMB Control No. 2040-0042) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before October 7, 2014.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2014-0359 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Robert E. Smith, Office of Ground Water and Drinking Water/Drinking Water Protection Division, 4606M, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-564-3895; fax number: 202-564-3756; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another
Environmental Protection Agency.
Notice of Charter Renewal.
Notice is hereby given that the Environmental Protection Agency (EPA) has determined that, in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, the EPA Great Lakes Advisory Board is a necessary committee which is in the public interest. Accordingly, the Advisory Board will be renewed for an additional two-year period. The purpose of the Advisory Board is to provide advice to the Administrator in her capacity as Chair of the Inter-Agency Task Force established per Executive Order 13340 (May 18, 2004), on matters related to Great Lakes restoration and protection. The Advisory Board's major objectives are to provide advice and
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Arkansas' request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective August 8, 2014.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566-1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On October 15, 2013, the Arkansas Department of Environmental Quality (ADEQ) submitted an application titled “Arkansas Department of Environmental Quality Electronic Portal System” for revisions/modifications of its EPA-authorized programs under title 40 CFR. EPA reviewed ADEQ's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Arkansas' request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 51, 70-71, 122, 144, 146, 262, 264-265, 270-271, and 279 is being published in the
Environmental Protection Agency.
Notice.
This notice announces the Environmental Protection Agency (EPA's) approval of the State of California's request to revise its EPA Administered Permit Programs: The National Pollutant Discharge Elimination System EPA-authorized program to allow electronic reporting.
EPA's approval is effective on August 8, 2014.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566-1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On August 19, 2013, the California State Water Resources Control Board (CA SWRCB) submitted an application titled “Storm Water Multiple Application and Report System” for revision/modification of its EPA-authorized authorized Part 123 program under title 40 CFR. EPA reviewed CA SWRCB's request to revise its EPA-authorized Part 123—EPA Administered Permit Programs: The National Pollutant Discharge Elimination System program and, based on this review, EPA determined that the application met the standards for approval of authorized program revision/modification set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve California's request to revise its Part 123—EPA Administered Permit Programs: The National Pollutant Discharge Elimination System program to allow electronic reporting under 40 CFR part 122 is being published in the
CA SWRCB was notified of EPA's determination to approve its application with respect to the authorized program listed above.
Environmental Protection Agency.
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”), notice is hereby given of a proposed consent decree to address a lawsuit filed by the Sierra Club in the United States District Court for the Northern District of California:
Written comments on the proposed consent decree must be received by
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2014-0585, online at
Stephanie Hogan, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564-3244; fax number: (202) 564-5603; email address:
The proposed consent decree would resolve a lawsuit filed by the Sierra Club seeking to compel the Administrator to take actions under CAA sections 110(k). Under the terms of the proposed consent decree, EPA would agree to sign a notice or notices by no later than August 15, 2014, finding that the States of Vermont, Wisconsin, and California (as to the North Coast Management
Under the terms of the proposed consent decree, EPA will deliver notice of each action to the Office of the Federal Register for review and publication within 15 days of signature. In addition, the proposed consent decree outlines the procedure for the Plaintiff to request costs of litigation, including attorney fees.
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 consent decree will be affirmed.
The official public docket for this action (identified by: EPA-HQ-OGC-2014-0585) 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 in 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
Environmental Protection Agency.
Notice of settlement.
Under 122(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the United States Environmental Protection Agency has entered into a settlement with Pamela S. Ahlen, J.J. Seifert Land Company and J.J. Seifert Machine Co., Inc. concerning the J.J. Seifert Machine Shop Superfund Site located in Sun City, Hillsborough County, Florida. The settlement is based on a financial analysis and addresses liability for past and future costs concerning work being performed at the Site and allows for the sale of the property.
The Agency will consider public comments on the settlement until September 8, 2014. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the amended settlement is inappropriate, improper, or inadequate.
Copies of the settlement are available from the Agency by contacting Ms. Paula V. Painter, Environmental Protection Specialist using the contact information provided in this notice. Comments may also be submitted by referencing the Site's name through one of the following methods:
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•
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Paula V. Painter at 404/562-8887
U.S. Department of Health and Human Services (HHS).
Notice and request for comments. Office of the National Coordinator for Health Information Technology is requesting OMB approval for an extension.
HHS, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on the “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.). This collection was developed as part of a Federal Government-wide effort to streamline the process for seeking feedback from the public on service delivery. This notice announces our intent to submit this collection to OMB for approval and solicits comments on specific aspects for the proposed information collection.
Consideration will be given to all comments received by October 7, 2014.
Submit comments by one of the following methods:
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•
Comments submitted in response to this notice may be made available to the public through relevant Web sites. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.
Information Collection Clearance staff,
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the Agency's services will be unavailable.
The Agency will only submit a collection for approval under this generic clearance if it meets the following conditions:
• The collections are voluntary;
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
• The collections are non-controversial and do not raise issues of concern to other Federal agencies;
• Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
• Personally identifiable information (PII) is collected only to the extent necessary and is not retained;
• Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency;
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
Below we provide projected average estimates for the next three years:
All written comments will be available for public inspection Regulations.gov.
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 control number.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by October 7, 2014:
When commenting, please reference the document identifier or OMB control number (OCN). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Form CMS-21 and -21B provide CMS with the information necessary to issue quarterly grant awards, monitor current year expenditure levels, determine the allowability of state claims for reimbursement, develop Children's Health Insurance Program (CHIP) financial management information, provide for state reporting of waiver expenditures, and ensure that the federally established allotment is not exceeded. They are also necessary in the redistribution and reallocation of unspent funds over the federally mandated timeframes.
Form CMS-37 due dates are November 15, February 15, May 15 and August 15 of each fiscal year. While all submissions represent equally important components of the grant award cycle, the May and November submissions are particularly significant for budget formulation. The November submission introduces a new fiscal year to the budget cycle and serves as the basis for the formulation of the Medicaid portion of the President's Budget, which is presented to Congress in January. The February and August submissions are used primarily for budget execution in providing interim updates to our Office of Financial Management, the Department of Health and Human Services, the Office of Management and Budget and Congress depending on the scheduling of the national budget review process in a given fiscal year. The submissions provide us with base information necessary to track current year obligations and expenditures in relation to the current year appropriation and to notify senior managers of any impending surpluses or deficits.
Form CMS-64 is used to issue quarterly grant awards, monitor current year expenditure levels, determine the allowability of state claims for reimbursement, develop Medicaid financial management information provide for state reporting of waiver expenditures, ensure that the federally-established limit is not exceeded for HCBS waivers, and to allow for the implementation of the Assignment of Rights and Part A and Part B Premium (i.e., accounting for overdue Part A and Part B Premiums under state buy-in agreements)—Billing Offsets.
Health Resources and Services Administration, HHS.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995), the Health Resources and Services Administration (HRSA) announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this Information Collection Request must be received no later than October 7, 2014.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
OMB No. 0915-0193—Revision.
Total Estimated Annualized Burden Hours:
HRSA specifically requests comments on (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.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, codified at 5 U.S.C. App.), notice is hereby given of the following meeting:
September 12, 2014, 9:00 a.m. to 3:00 p.m.
Agenda items are subject to change as necessary or appropriate. The agenda, webinar information, Committee Roster,
More information on the Advisory Committee is available at
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the following National Advisory body scheduled to meet during the month of September 2014.
The National Advisory Committee on Rural Health and Human Services will convene its seventy sixth meeting in the time and place specified below:
Thursday morning at approximately 8:30 a.m., the Committee will break into Subcommittees and depart for site visits to health care and human services providers in South Dakota and Minnesota. Subcommittees will visit the Pipestone County Medical Center and the Good Samaritan Society in Pipestone, Minnesota, and the Horizon Health Clinic in Howard, South Dakota. The day will conclude at the Avera eHelm with a period of public comment at approximately 5:15 p.m.
Friday morning at 8:30 a.m., the Committee will meet to summarize key findings and develop a work plan for the next quarter and the following meeting.
Persons interested in attending any portion of the meeting should contact Catherine Fontenot at the Office of Rural Health Policy (ORHP) via telephone at (301) 945-0897or by email at
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: Daniel Hobbs, Management Analyst, Epidemiology & Biostatistics Section, Rehabilitation Medicine Department, Clinical Center, NIH, 6100 Executive Blvd. Suite 3C01, Bethesda, MD 20892, or call non-toll-free number (301) 496-3817 or Email your request, including your address to:
Development of these instruments is an iterative process, involving sequential phases of study in the areas of item bank development, calibration, validation, reliability testing and replenishment of the item banks. CAT instruments for the Applied Cognition and Activities of Daily Living domains will undergo calibration; predictive validity will be examined; concurrent validity will be tested against legacy functional assessment instruments; reliability and sensitivity will be examined; and, the item banks will undergo replenishment to refine the scope of the questions.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 12,835.
60-Day Notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until October 7, 2014.
All submissions received must include the OMB Control Number 1615-0049 in the subject box, the agency name and Docket ID USCIS-2005-0036. To avoid duplicate submissions, please use only one of the following methods to submit comments:
(1)
(2)
(3)
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the 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 submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
If you need a copy of the information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information or new collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until October 7, 2014.
All submissions received must include the OMB Control Number 1615-0063 in the subject box, the agency name and Docket ID USCIS-2008-0003. To avoid duplicate submissions, please use only one of the following methods to submit comments:
(1)
(2)
(3)
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the 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 submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
If you need a copy of the information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Report of Diversion. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before September 8, 2014 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7262, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Adrian Rivera and ARM Enterprises, Inc. on August 4, 2014. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain beverage brewing capsules, components thereof and products containing the same. The complaint name as respondents Solofill LLC of Houston, TX; DonGuan Hai Rui Precision Mould Co., Ltd., of China; Eko Brands, LLC of Woodinville, WA; Evermuch Technology Co., Ltd. of Hong Kong; Ever Much Company Ltd. of China; Melitta USA, Inc. of North Clearwater, FL; LBP Mfg. Inc. of Cicero, IL; LBP Packaging (Shenzhen) Co. Ltd. of China; Spark Innovators, Corp. of Fairfield, NJ; B. Marlboros International Ltd. (HK) of Hong Kong and Amazon.com, Inc. of Seattle, WA. The complainant requests that the Commission issue a permanent limited exclusion order and permanent cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3026”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
On the basis of the record
The Commission instituted this review on March 3, 2014 (79 FR 11827), and determined on June 6, 2014 that it would conduct an expedited review (79 FR 34783, June 18, 2014).
The Commission completed and filed its determination in this review on August 4, 2014. The views of the Commission are contained in USITC Publication 4483 (August 2014), entitled
By order of the Commission.
United States International Trade Commission.
Notice.
On July 31, 2014, the Department of Commerce published notice in the
Effective Date: July 31, 2014.
Christopher J. Cassise (202-708-5408), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
This investigation is being terminated under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 201.10 of the Commission's rules (19 CFR § 201.10).
By order of the Commission.
United States International Trade Commission.
August 14, 2014 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Judicial Conference of the United States Advisory Committee on Rules of Evidence.
Notice of Open Meeting.
The Advisory Committee on Rules of Evidence will hold a one-day meeting. The meeting will be open to public observation but not participation.
October 24, 2014.
8:30 a.m. to 5:00 p.m.
Duke University School of Law, Burdman Lounge, 210 Science Drive, Durham, North Carolina 27708.
Jonathan C. Rose, Secretary and Chief Rules Officer, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Judicial Conference of the United States Advisory Committee on Rules of Civil Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Civil Procedure will hold a two-day meeting. The meeting will be open to public observation but not participation.
October 30-31, 2014.
8:30 a.m. to 5:00 p.m.
Thurgood Marshall Federal Judiciary Building, Mecham Conference Center, One Columbus Circle NE., Washington, DC 20544.
Jonathan C. Rose, Secretary and Chief Rules Officer, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Judicial Conference of the United States Advisory Committee on Rules of Criminal Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Criminal Procedure will hold a two-day meeting. The meeting will be open to public observation but not participation.
November 4-5, 2014.
8:30 a.m. to 5:00 p.m.
Thurgood Marshall Federal Judiciary Building, Mecham Conference Center, One Columbus Circle NE., Washington, DC 20544.
Jonathan C. Rose, Secretary and Chief Rules Officer, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Notice is hereby given that, on July 11, 2014, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Sekisui, Tokyo, JAPAN, has withdrawn as a party to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and HDPUG intends to file additional written notifications disclosing all changes in membership.
On September 14, 1994, HDPUG filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 27, 2014. A notice was published in the
Notice is hereby given that, on July 8, 2014, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and PERF intends to file additional written notifications disclosing all changes in membership.
On February 10, 1986, PERF filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 6, 2014. A notice was published in the
Notice is hereby given that, on July 8, 2014, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Acision, Dublin, IRELAND; Adaptive Mobile Security Ltd., Dublin, IRELAND; AePona Ltd., Belfast, UNITED KINGDOM; Andrew LLC, Ashburn, VA; AuthenTec, Inc., Melbourne, FL; Beijing Leadtone Wireless Ltd., Beijing, PEOPLE'S REPUBLIC OF CHINA; Birdstep Technology AB, Stockholm, SWEDEN; Capricode, Oulu, FINLAND; Celltick Technologies Ltd., Herzliya, ISRAEL; Cinterion Wireless Modules GmbH, Munich, GERMANY; Cloudmark, Inc., San Francisco, CA; Converlogic, Garches, FRANCE; CoreMedia, Hamburg, GERMANY; DKI Technology Inc., Young deungpo-gu, Seoul, REPUBLIC OF KOREA; Ecrio Inc., Cupertino, CA; HTC Corp., Taoyuan County, TAIWAN; Ikivo AB, Stockholm, SWEDEN; Industrial Technology Research Institute, Hsinchu, TAIWAN; InnoPath Software, Alviso, CA; Interop Technologies, Ft. Meyers, FL; InvisiTrack, Inc., Annapolis, MD; Kii Corporation, Tokyo, JAPAN; Layer 7 Technologies, Vancouver, British Columbia, CANADA; LG Uplus Corp., Seoul, REPUBLIC OF KOREA; License Management International, LLC, Morgan Hill, CA; MediaTek Inc., Hsin-Chu City, TAIWAN; Mobile Leader Inc., Seoul, REPUBLIC OF KOREA; Motorola Mobility LLC, Schaumburg, IL; Movenda SpA, Roma, ITALY; Nokia Siemens Networks, Muenchen, GERMANY; NTT Advanced Technology Corporation, Musashino-shi, Tokyo, JAPAN; NVIDIA Corp., Sofia Antipolis, FRANCE; Oberthur Technologies S.A., Nanteroie Cedex, FRANCE; One2Many, Deventek, THE NETHERLANDS; Oracle America, Inc., Palo Alto, CA; Sensinode Ltd., Oulu, FINLAND; Shenzhen Coolpad Technologies Co., Ltd., Nanshan, Shenzhen, PEOPLE'S REPUBLIC OF CHINA; Sicap, Koeniz, SWITZERLAND; SK Planet, Seoul, REPUBLIC OF KOREA; TCT Mobile Ltd., Shenzhen, PEOPLE'S REPUBLIC OF CHINA; Telecommunication Metrology Center of MIIT, Beijing, PEOPLE'S REPUBLIC OF CHINA; Telenor ASA, NORWAY; TeliaSonera AB, Nacka Strand, SWEDEN; UL VS Ltd., Basingstoke, Hampshire, UNITED KINGDOM; UltiMobile, LLC., Orlando, FL; US Cellular, Chicago, IL; Viaccess SA, Paris, FRANCE; Volantis Systems Ltd., Guildford, Surrey, UNITED KINGDOM; Vox Mobili, Paris, FRANCE; Websync, Yeosam-dong, Gangnam-gu, REPUBLIC OF KOREA; and Wireless Zeta Telecomunicaciones, S.L., Sanse, SPAIN; have withdrawn as parties to this venture.
The following members have changed their names: mformation Technologies Inc. to Mformation Software Technologies, Inc., Edison, NJ; and Research In Motion to BlackBerry, Waterloo, Ontario, CANADA.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and OMA intends to file additional written notifications disclosing all changes in membership.
On March 18, 1998, OMA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 21, 2013. A notice was published in the
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), on the Department of Justice's Web site at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the U.S. Department of Justice, Antitrust Division's internet Web site, filed with the Court and, under certain circumstances, published in the
The United States of America, acting under the direction of the Attorney General of the United States, brings this civil antitrust action to enjoin the proposed acquisition by LM U.S. Corp Acquisition Inc. (with affiliated companies doing business as Landmark Aviation, “Landmark”) of Ross Aviation, LLC (“Ross”) (collectively, “Defendants”) and to obtain other equitable relief. The United States alleges as follows:
1. On April 19, 2014, Landmark and Ross signed an agreement for Landmark to acquire Ross's United States fixed base operators (“FBOs”) for approximately $330 million. FBOs provide flight support services—including fueling, ramp and hangar rentals, office space rentals, and other services—to general aviation customers. Landmark is the third largest fixed base operator in the United States and operates over 40 FBOs at airports around the country. Ross operates FBOs at 19 airports in the United States. Both Landmark and Ross operate FBOs at the Scottsdale Municipal Airport (“SDL”).
2. Landmark and Ross are the only two FBOs operating at SDL. They compete directly on price and quality of FBO services for general aviation customers. Thus, the proposed acquisition would eliminate this head-to-head competition and create an FBO monopoly at SDL. The proposed acquisition would also give Landmark the ability to raise prices and lower the quality of services at SDL for general aviation customers. Unless the transaction is enjoined, the proposed acquisition is likely to lessen competition substantially in the market for FBO services at SDL in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.
3. The United States brings this action under Section 15 of the Clayton Act, as amended, 15 U.S.C. § 25, to prevent and restrain Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. § 18.
4. Defendants are engaged in interstate commerce and in activities substantially affecting interstate commerce. Landmark and Ross provide FBO services to aircraft landing throughout the United States. This Court has subject matter jurisdiction over this action and jurisdiction over the parties pursuant to 15 U.S.C. § 25, and 28 U.S.C. §§ 1331, 1337(a), and 1345.
5. Defendants have consented to venue and personal jurisdiction in this District.
6. LM U.S. Corp Acquisition Inc. is a Delaware corporation with its principal place of business in Houston, Texas. LM U.S. Corp Acquisition Inc. is a subsidiary of CP V Landmark II, L.P. CP V Landmark II, L.P. and CP V Landmark, L.P., which are both limited partnerships within the Carlyle Group, control all the companies doing business as Landmark Aviation. CP V Landmark II, L.P., CP V Landmark, L.P., and Carlyle Partners V, L.P. (collectively, “Landmark”) are all limited partnerships within the Carlyle Group with the same or similar investors. Landmark owns and operates more than 40 FBO facilities in the United States, including its FBO operation at SDL, which it operates as Landmark Aviation-SDL.
7. Ross is a Delaware limited liability company with its principal place of business in Denver, Colorado. Ross owns and operates 19 FBO facilities in the United States, including its FBO operation at SDL, which it operates as Scottsdale AirCenter.
8. On April 19, 2014, Landmark and Ross executed a Transaction Agreement under which Landmark will acquire all of Ross's FBO assets for approximately $330 million.
9. FBO services include the sale of jet aviation fuel (“Jet A fuel”) and aviation gasoline (“avgas”), as well as related support services, to general aviation customers. FBOs usually do not charge separately for services such as conference rooms, pilot lounges, flight planning, and transportation. Instead, they recover the cost of these ancillary services in the price that they charge for fuel. FBOs often charge separately for hangar and office rentals, aircraft storage, tie-down and ground services, deicing, and catering.
10. The largest source of revenue for an FBO is fuel sales. FBOs sell Jet A fuel for jet aircraft, turboprops and helicopters, and avgas for smaller, piston-operated planes.
11. General aviation customers cannot obtain fuel, hangar, ramp or related services at SDL, except through the FBOs authorized to sell such products and services by the local airport authority. Consequently, general aviation customers landing at SDL have no option other than to use Landmark and Ross FBOs for these services. Obtaining FBO services at another airport would not provide an economically practical alternative for
12. Accordingly, the provision of FBO services to general aviation customers is a relevant product market and SDL is a relevant geographic market (i.e., a line of commerce and a section of the country) under Section 7 of the Clayton Act, 15 U.S.C. § 18.
13. The market for FBO services at SDL is highly concentrated, with only two providers—Landmark and Ross. If Landmark acquires the Ross FBO facility, it will have a monopoly in the market for FBO services at SDL.
14. Competition between Landmark's and Ross's FBO facilities currently limits the ability of each to raise prices for FBO services. This head-to-head competition also forces each company to offer better service to customers. The proposed acquisition would eliminate the competitive constraint each imposes on the other.
15. Thus, the proposed acquisition would lead to a monopoly at SDL, which, in turn, would likely result in higher prices for FBO services and a lower quality of service for customers in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.
16. Successful entry into the provision of FBO services at SDL by a new competitor would not be timely, likely, or sufficient to deter the anticompetitive effects resulting from this transaction. Entry sufficient to replace the market impact of Ross would be unlikely for several reasons. First, Landmark and Ross both hold long-term leases from SDL for their FBO Facilities. Additionally, the new FBO provider would need to get the approval of the airport authority, obtain permits, and construct facilities prior to beginning its operations at SDL. This process would require extensive lead time to complete and there is no guarantee that the new provider would be able to obtain the necessary approvals and permits. Thus, timely and successful entry at SDL by a new provider of FBO services would be unlikely to occur in response to a small but significant and non-transitory post-merger price increase.
17. The United States hereby incorporates paragraphs 1 through 16.
18. Unless enjoined, Landmark's proposed acquisition of Ross is likely to substantially lessen competition and restrain trade for FBO services at SDL in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18, in the following ways:
a. actual and potential competition between Landmark and Ross for FBO services at SDL will be eliminated;
b. competition for FBO services at SDL will be eliminated; and
c. prices for FBO services for general aviation customers at SDL will likely increase and quality of service will likely decrease.
19. The United States requests that:
a. Landmark's proposed acquisition of Ross's FBO facility at SDL be adjudged and decreed to be unlawful and in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18;
b. Defendants and all persons acting on their behalf be preliminarily and permanently enjoined and restrained from consummating the proposed transaction or from entering into or carrying out any contract, agreement, plan, or understanding, the effect of which would be to combine Landmark's and Ross's FBO facilities and assets at SDL;
c. the United States be awarded its costs for this action; and
d. the United States receive such other and further relief as the Court deems just and proper.
Dated this 30th day of July, 2014.
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. § 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
Defendant LM U.S. Corp Acquisition Inc. (with affiliated companies doing business as Landmark Aviation, “Landmark”) and Defendant Ross Aviation, LLC (“Ross”) (collectively, “Defendants”) entered into an Agreement, dated April 19, 2014, pursuant to which Landmark will acquire the fixed base operators (“FBO”) of Ross Aviation for approximately $330 million. The United States filed a civil antitrust Complaint on July 30, 2014, seeking to enjoin the proposed acquisition. The Complaint alleges that the likely effect of this acquisition would be to combine the only providers of FBO services at Scottsdale Municipal Airport (“SDL”), thereby creating a monopoly in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. This loss of competition likely would result in both (1) higher prices for fuel and other FBO services and (2) a reduction in the quality of FBO services offered at SDL.
At the same time the Complaint was filed, the United States also filed a Hold Separate Stipulation and Order (“Hold Separate”) and proposed Final Judgment, which are designed to eliminate the anticompetitive effects of the acquisition. Under the proposed Final Judgment, which is explained more fully below, Defendants are required to sell Ross's FBO assets at SDL, which currently operate as a wholly owned subsidiary: Ross Scottsdale LLC (the “Divestiture Assets”). Under the terms of the Hold Separate Stipulation and Order, Defendant Landmark will take certain steps to ensure that the Divestiture Assets are operated as a competitively independent, economically viable and
The United States and Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
LM U.S. Corp Acquisition Inc. is a Delaware corporation with its principal place of business in Houston, Texas. LM U.S. Corp Acquisition Inc. is a subsidiary of CP V Landmark II, L.P. CP V Landmark II, L.P. and CP V Landmark, L.P., which are both limited partnerships within the Carlyle Group, control all the companies doing business as Landmark Aviation. CP V Landmark II, L.P., CP V Landmark, L.P., and Carlyle Partners V, L.P. (collectively, “Landmark”) are all limited partnerships within the Carlyle Group with the same or similar investors. Landmark owns and operates more than 40 FBO facilities in the United States, including its FBO operation at SDL, which it operates as Landmark Aviation-SDL.
Ross Aviation, LLC (“Ross”) is a Delaware limited liability company with its principal place of business in Denver, Colorado. Ross is a subsidiary of Genossenschaft Constanter, a Swiss company. Ross owns and operates 19 FBO facilities in the United States, including its FBO operation at SDL, which it operates as Scottsdale AirCenter.
The proposed transaction, as initially agreed to by Defendants on April 19, 2014, would result in Landmark's acquisition of Ross's United States FBO locations for $330 million. SDL is the only airport at which Landmark and Ross currently compete in the provision of FBO services. Defendants are the only two full-service FBOs operating at SDL, and successful entry into the provision of FBO services at SDL by a new competitor would not be timely, likely, or sufficient to deter the anticompetitive effects resulting from this transaction. This acquisition is the subject of the Complaint and proposed Final Judgment filed by the United States on July 30, 2014.
The Complaint alleges that the proposed transaction would eliminate competition in the provision of FBO services at SDL in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. FBOs are facilities located at airports that provide fuel and related support services to general aviation customers. General aviation customers include charter, private, and corporate aircraft operators, as distinguished from scheduled commercial passenger and cargo airline operators and military flying.
Fuel sales are the largest source of revenues for FBOs. FBOs often do not charge separately for services such as conference rooms, pilot lounges, newspapers, or baggage handling. Instead, they recover the cost of these services through fuel revenues. FBOs also derive income from hangar and office rentals, aircraft storage, tie-down and ground services, and deicing.
General aviation customers cannot obtain fuel, hangar, ramp, and related services at SDL except through an FBO authorized to sell such services by the local airport authority. Consequently general aviation customers departing from or landing at SDL have no option other than to use Landmark and Ross FBOs for these services. Obtaining FBO services at other airports in the Scottsdale region would not provide an economically practical alternative for these general aviation customers because many general aviation customers select SDL over other airports in the area for its proximity to Scottsdale. General aviation customers at SDL would not switch to other airports in the Scottsdale region in sufficient numbers to prevent anticompetitive price increases for fuel and other FBO services at SDL.
Landmark and Ross are the only two providers for FBO services at SDL. Competition between them currently limits the ability of each to raise prices for FBO services. This head-to-head competition also forces each company to offer better service to general aviation customers at SDL. The proposed acquisition would eliminate the competitive constraint each provider imposes upon the other and lead to a monopoly at SDL. This would result in higher prices for fuel and other FBO services and a lower quality of services in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.
Successful entry into the provision of FBO services at SDL by a new competitor would not be timely, likely, or sufficient to deter the anticompetitive effects resulting from this transaction. Entry sufficient to replace the market impact of Ross would be unlikely for several reasons. Landmark and Ross both hold long-term leases from SDL for their FBO Facilities. Additionally, the new FBO provider would need to get the approval of the airport authority, obtain permits, and construct facilities prior to beginning its operations at SDL. This process would require extensive lead time to complete and there is no guarantee that the new provider would be able to obtain the necessary approvals and permits. Thus, timely and successful entry at SDL by a new provider of FBO services would be unlikely to occur in response to a small but significant and non-transitory post-merger price increase.
The divestiture requirement of the proposed Final Judgment will eliminate the anticompetitive effects of the acquisition in the market for FBO services provided to general aviation customers at SDL by establishing a new, independent, and economically viable competitor. The proposed Final Judgment requires the Defendants to divest, as a viable ongoing business, the Divestiture Assets. The Divestiture Assets must be divested to Signature Flight Support Corporation (“Signature”) or to another acquirer in such a way as to satisfy the United States in its sole discretion that the operations can and will be operated by the purchaser as a viable, ongoing business that can compete effectively in the relevant market. Defendants must take all reasonable steps necessary to accomplish the divestiture quickly. In order to provide greater certainty and efficiency in the divestiture process, the United States has approved Defendants' proposed Acquirer, Signature Flight Support Corporation (“Signature”). If Defendants do not sell the assets to Signature, they shall cooperate with prospective purchasers to accomplish the divestiture expeditiously.
In antitrust cases involving acquisitions in which the United States requests a divestiture remedy, the United States seeks to require completion of the divestiture within the
Section IV(B) of the proposed Final Judgment requires the Defendants to furnish information to prospective acquirers in an attempt to sell the divestiture assets. In this instance, the United States has already approved Signature as an appropriate acquirer for the divestiture assets. If Defendants sell the divestiture assets to Signature, no additional time will be needed for the United States to approve the acquirer, and Defendants will not need to furnish information to prospective acquirers.
In the event that Defendants do not accomplish the divestiture within the periods prescribed in the proposed Final Judgment, Section V of the proposed Final Judgment provides that the Court will appoint a Divestiture Trustee selected by the United States to effect the sale of the Divestiture Assets. If a Divestiture Trustee is appointed, the proposed Final Judgment provides that Defendants will pay all costs and expenses of the Divestiture Trustee. The Divestiture Trustee's commission will be structured so as to incentivize the Divestiture Trustee to complete the divestiture as quickly as possible while trying to obtain the highest possible price for the Divestiture Assets. After his or her appointment becomes effective, the Divestiture Trustee will file monthly reports with the Court and the United States which set forth his or her efforts to accomplish the divestiture. At the end of six (6) months, if the divestiture has not been accomplished, the Divestiture Trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate, in order to carry out the purpose of the trust, including extending the trust or the term of the Divestiture Trustee's appointment.
The divestiture provisions of the proposed Final Judgment will eliminate the anticompetitive effects of the acquisition in the provision of FBO services at SDL.
Section XI of the proposed Final Judgment requires Landmark to provide advance notification of certain future acquisitions from entities providing FBO services that would not otherwise be reportable under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The notification provision of the proposed Final Judgment is intended to inform the Division of transactions that raise competitive concerns similar to those remedied here, and if necessary, to seek to enjoin any transaction pursuant to Section 7 of the Clayton Act, 15 U.S.C. § 18.
The proposed Final Judgment provides that Landmark shall not directly or indirectly acquire any leases from, assets of, or interests in any entity providing FBO services at an airport in the United States where Landmark is providing FBO services, without prior notification to the United States. Notification is not required if the value of the assets, interests, or leases is $20 million or less, or if there is another full service FBO facility at the airport that is not involved in the transaction. The proposed Final Judgment requires that notification shall be provided within five (5) business days of entering into a definitive assumption or acquisition agreement and at least thirty (30) calendar days prior to acquiring any such interest. If Landmark formally requests approval for a lease transfer from an airport authority in writing prior to entering into an agreement, Landmark shall report this request to the Antitrust Division within two (2) days; however, the thirty (30) day waiting period shall not begin until the Antitrust Division receives the Notification and Report Form.
Section 4 of the Clayton Act, 15 U.S.C. § 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Defendants.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to:
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. § 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. § 16(e)(2). The language wrote into the statute what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598 (1973) (statement of Sen. John Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's “scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.”
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
WHEREAS, Plaintiff, United States of America, filed its Complaint on July 30, 2014, the United States and Defendants, Defendant LM U.S. Corp Acquisition Inc. and Defendant Ross Aviation, LLC by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any party regarding any issue of fact or law;
AND WHEREAS, Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and certain divestiture of certain rights or assets by the Defendants to assure that competition is not substantially lessened;
AND WHEREAS, the United States requires Defendants to make certain divestitures for the purpose of remedying the loss of competition alleged in the Complaint;
AND WHEREAS, Defendants have represented to the United States that the divestitures required below can and will be made and that Defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained below;
NOW THEREFORE, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is ORDERED, ADJUDGED AND DECREED:
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act, as amended (15 U.S.C. § 18).
As used in this Final Judgment:
A. “Acquirer” means Signature Flight Support Corporation, or another entity to whom Defendants divest the Divestiture Assets.
B. “Landmark” means Defendant LM U.S. Corp Acquisition Inc., a Delaware corporation with its headquarters in Houston, Texas, CP V Landmark L.P., CP V Landmark II, L.P., any party that acquires all or substantially all of the assets by which any of the foregoing (in the aggregate, with their subsidiaries taken as a whole) performs FBO Services, Carlyle Partners V, L.P., and their subsidiaries, divisions, groups, partnerships, joint ventures, directors, officers, managers, and employees.
C. “Ross” means Defendant Ross Aviation, LLC, a Delaware corporation with its headquarters in Denver, Colorado, its successors and assigns, subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. One of Ross's wholly owned subsidiaries, Ross Scottsdale LLC, a Delaware limited liability corporation headquartered in Scottsdale, Arizona, operates the Divestiture Assets.
D. “Signature” means Signature Flight Support Corporation, a Delaware corporation with its headquarters in Orlando, FL, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
E. “SDL Airport” means Scottsdale Municipal Airport, located in Scottsdale, Arizona.
F. “FBO Services” means any or all services relating to providing fixed based operator services, including, but not limited to, selling fuel; leasing hanger, ramp, and office space; providing flight support services; performing maintenance; providing access to terminal facilities; or arranging for ancillary services such as limousines, rental cars, or hotels.
G. “FBO Facilities” means any and all tangible and intangible assets that comprise the business of providing FBO Services, including, but not limited to, all personal property, inventory, office furniture, materials, supplies, terminal space, hangars, ramps, general aviation fuel tank farms for jet aviation fuel and aviation gas, and related fueling and maintenance equipment, and other tangible property and all assets used exclusively in connection with the business of providing FBO Services; all licenses, permits, and authorizations issued by any governmental
H. “Full Service FBO” means a facility that provides FBO Services, including pumping fuel into aircraft, and sells all fuel types (Jet A and/or avgas) sold by FBOs at that airport.
I. “Divestiture Assets” means Ross Scottsdale LLC, a Delaware limited liability company, including all rights, titles and interests, including all fee, leasehold and real property rights in Ross's FBO Facilities at SDL Airport.
J. “Proposed Transaction” means Landmark's proposed acquisition of certain assets from Ross pursuant to the Transaction Agreement by and among Ross Aviation Holdco LLC, Ross Aviation, LLC, and LM U.S. Corp Acquisition Inc., dated April 19, 2014.
A. This Final Judgment applies to Landmark and Ross, as defined above, and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Section IV and V of this Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their assets or of lesser business units that include the Divestiture Assets, they shall require the purchaser to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from the acquirer of the assets divested pursuant to this Final Judgment.
A. Defendants are ordered and directed, within ten (10) calendar days after the Court signs the Hold Separate Stipulation and Order in this matter, to divest the Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States, in its sole discretion. Defendants agree to use their best efforts to divest the Divestiture Assets as expeditiously as possible. The United States, in its sole discretion, may agree to one or more extensions of this time period not to exceed ninety (90) calendar days in total, and shall notify the Court in such circumstances.
B. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets. Following the sale of the Divestiture Assets, Defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets.
C. In the event Defendants are attempting to divest the Divestiture Assets to an Acquirer other than Signature, in accomplishing the divestiture ordered by this Final Judgment, Defendants promptly shall make known, by usual and customary means, the availability of the Divestiture Assets. Defendants shall inform any person making inquiry regarding a possible purchase of the Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privileges or work-product doctrine. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.
D. Defendants shall provide the Acquirer and the United States information relating to the personnel involved in the operation, management, and sale of the Divestiture Assets to enable the Acquirer to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer to employ any Defendant employee whose primary responsibility is the operation, management, and sale of the Divestiture Assets.
E. Defendants shall permit prospective Acquirers of the Divestiture Assets to have reasonable access to personnel and to make inspections of the physical facilities of the Divestiture Assets; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
F. Defendants shall warrant to the Acquirer that each asset will be operational on the date of sale.
G. Defendants shall warrant to the Acquirer that there are no material defects in the environmental, zoning, or other permits pertaining to the operation of each asset.
H. The foregoing Sections IV.C through IV.G shall not apply in the event that the acquirer of the Divestiture Assets is Signature pursuant to the Interest Purchase Agreement dated as of May 23, 2014 by and among Signature Flight Support Corporation, LM U.S. Corp Acquisition, Inc. and, as of the Closing, Ross Aviation, LLC.
I. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV, or by Divestiture Trustee appointed pursuant to Section V, of this Final Judgment, shall include the entire Divestiture Assets, and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by the Acquirer as part of a viable, ongoing business engaged in providing FBO Services at SDL Airport. The divestitures, whether pursuant to Section IV or Section V of this Final Judgment,
(1) shall be made to an Acquirer that, in the United States's sole judgment, has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the provision of FBO Services at SDL Airport; and
(2) shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between an Acquirer and Defendants give Defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
A. If Defendants have not divested the Divestiture Assets within the time period specified in Section IV(A), Defendants shall notify the United States of that fact in writing. Upon application of the United States, the Court shall appoint a Divestiture Trustee selected by the United States and approved by the Court to effect the divestiture of the Divestiture Assets.
B. After the appointment of a Divestiture Trustee becomes effective, only the Divestiture Trustee shall have the right to sell the Divestiture Assets. The Divestiture Trustee shall have the
C. Defendants shall not object to a sale by the Divestiture Trustee on any ground other than the Divestiture Trustee's malfeasance. Any such objections by Defendants must be conveyed in writing to the United States and the Divestiture Trustee within ten (10) calendar days after the Divestiture Trustee has provided the notice required under Section VI.
D. The Divestiture Trustee shall serve at the cost and expense of Defendants, on such terms and conditions as the United States approves, including confidentiality requirements and conflict of interest certifications. The Divestiture Trustee shall account for all monies derived from the sale of the assets sold by the Divestiture Trustee and all costs and expenses so incurred. After approval by the Court of the Divestiture Trustee's accounting, including fees for its services yet unpaid and those of any professionals and agents retained by the Divestiture Trustee, all remaining money shall be paid to Defendants and the trust shall then be terminated. The compensation of the Divestiture Trustee and any professionals and agents retained by the Divestiture Trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the Divestiture Trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount. If the Divestiture Trustee and Landmark are unable to reach agreement on the Divestiture Trustee's or any agents' or consultants' compensation or other terms and conditions of engagement within fourteen (14) calendar days of appointment of the Divestiture Trustee, the United States may, in its sole discretion, take appropriate action, including making a recommendation to the Court.
E. Defendants shall use their best efforts to assist the Divestiture Trustee in accomplishing the required divestiture. The Divestiture Trustee and any consultants, accountants, attorneys, and other agents retained by the Divestiture Trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and Defendants shall develop financial and other information relevant to such business as the Divestiture Trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information. Defendants shall take no action to interfere with or to impede the Divestiture Trustee's accomplishment of the divestiture.
F. After its appointment, the Divestiture Trustee shall file monthly reports with the United States and, as appropriate, the Court setting forth the Divestiture Trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the Divestiture Trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The Divestiture Trustee shall maintain full records of all efforts made to divest the Divestiture Assets.
G. If the Divestiture Trustee has not accomplished the divestiture ordered under this Final Judgment within six (6) months after its appointment, the Divestiture Trustee shall promptly file with the Court a report setting forth (1) the Divestiture Trustee's efforts to accomplish the required divestiture, (2) the reasons, in the Divestiture Trustee's judgment, why the required divestiture has not been accomplished, and (3) the Divestiture Trustee's recommendations. To the extent such reports contains information that the Divestiture Trustee deems confidential, such reports shall not be filed in the public docket of the Court. The Divestiture Trustee shall at the same time furnish such report to the United States which shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the Divestiture Trustee's appointment by a period requested by the United States.
H. If the United States determines that the Divestiture Trustee has ceased to act or failed to act diligently or in a reasonably cost-effective manner, it may recommend the Court appoint a substitute Divestiture Trustee.
A. Within two (2) business days following execution of a definitive divestiture agreement, Defendants or the Divestiture Trustee, whichever is then responsible for effecting the divestiture required herein, shall notify the United States of any proposed divestiture required by Section IV or V of this Final Judgment. If the Divestiture Trustee is responsible, it shall similarly notify Defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States may request from Defendants, the proposed Acquirer, any other third party, or the Divestiture Trustee, if applicable, additional information concerning the proposed divestiture, the proposed Acquirer, and any other potential Acquirer. Defendants and the Divestiture Trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States has been provided the additional information requested from Defendants, the proposed Acquirer, any third party, and the Divestiture Trustee, whichever is later, the United States shall provide written notice to Defendants and the Divestiture Trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to Defendants' limited right to object to the sale under Section V(C) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer or upon
Defendants shall not finance all or any part of any purchase made pursuant to Section IV or V of this Final Judgment.
Until the divestiture required by this Final Judgment has been accomplished, Defendants shall take all steps necessary to comply with the Hold Separate Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestiture ordered by this Court.
A. Within twenty (20) calendar days of the filing of the Complaint in this matter, and every thirty (30) calendar days thereafter until the divestiture has been completed under Section IV or V, Defendants shall deliver to the United States an affidavit as to the fact and manner of its compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty (30) calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts Defendants have taken to solicit buyers for the Divestiture Assets, and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by Defendants, including limitation on information, shall be made within fourteen (14) calendar days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint in this matter, Defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions Defendants have taken and all steps Defendants have implemented on an ongoing basis to comply with Section VIII of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in Defendants' earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.
C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.
A. For the purposes of determining or securing compliance with this Final Judgment, or of any related orders such as any Hold Separate Order, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
(1) access during Defendants' office hours to inspect and copy, or at the option of the United States, to require Defendants to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendants, relating to any matters contained in this Final Judgment; and
(2) to interview, either informally or on the record, Defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports or response to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by Defendants to the United States, Defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” then the United States shall give Defendants ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
Unless such transaction is otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. § 18a (the “HSR Act”), Defendant Landmark, without providing advance notification to the Antitrust Division, shall not directly or indirectly assume a lease from, acquire assets of, or acquire interest in any entity engaged in provision of FBO Services at an airport where Landmark is already providing FBO Services in the United States during the term of this Final Judgment, unless the assumption or acquisition (1) is valued at less than $20 million dollars or (2) at least one Full Service FBO, not involved in the transaction, provides FBO Services at the airport where the assumption or acquisition will take place.
Such notification shall be provided to the Antitrust Division in the same format as and per the instructions relating to the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended, except that the information requested in Items 5 through 8 of the instructions must be provided only about the provision of FBO Services. Notification shall be provided within five (5) business days of entering into a definitive assumption or acquisition agreement and at least thirty (30) calendar days prior to acquiring any such interest, and shall include, beyond what may be required by the applicable instructions, the names of the principal representatives of the parties to the agreement who negotiated the agreement. Should Landmark contact an airport authority formally requesting approval of a lease transfer in a transaction that would require the notification described in this paragraph prior to entering into a
Early termination of the waiting period in this paragraph may be requested and may be granted by the Antitrust Division in its sole discretion. This Section shall be broadly construed and any ambiguity or uncertainty regarding the filing of notice under this Section shall be resolved in favor of filing notice.
Defendants may not reacquire any part of the Divestiture Assets during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten years from the date of its entry.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States's responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on August 7, 2012, applicable to workers of Bay Area News Group East Bay, LLC, a wholly owned subsidiary of California Newspapers Partnership, Walnut Creek, California. The Department's notice of determination was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers' firm is engaged in activities related to the production of newspapers. The worker group is engaged in advertisement production, including graphic design.
New information from the company revealed that the subject firm has relocated from 2640 Shadelands Drive, Walnut Creek, California to 175 Lennon Lane, Walnut Creek, California.
The intent of the Department's certification is to include all workers of the firm who were adversely affected by a shift in production of newspapers to a foreign country. Based on these findings, the Department is amending this certification to also include the workers of 175 Lennon Lane, Walnut Creek, California.
The amended notice applicable to TA-W-81,756 is hereby issued as follows:
All workers of Bay Area News Group East Bay, LLC, a wholly owned subsidiary of California Newspapers Partnership, 2640 Shadelands Drive and 175 Lennon Lane, Walnut Creek, California, who became totally or partially separated from employment on or after June 15, 2011 through August 7, 2014, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than August 18, 2014.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than August 18, 2014.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of July 21, 2014 through July 25, 2014.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. the sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. there has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. the country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. there has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
None.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
None.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued in cases where these petitions were not filed in accordance with the requirements of 29 CFR 90.11. Every petition filed by workers must be signed by at least three individuals of the petitioning worker group. Petitioners separated more than one year prior to the date of the petition cannot be covered under a certification of a petition under Section 223(b), and therefore, may not be part of a petitioning worker group. For one or more of these reasons, these petitions were deemed invalid.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of July 21, 2014 through July 25, 2014. These determinations are available on the Department's Web site
National Aeronautics and Space Administration.
Notice of information collection.
The National Aeronautics and Space Administration, 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 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
Consideration will be given to all comments received within 30 days after from the date of this publication.
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 7th Street NW., Washington, DC 20503, Attention: Desk Officer for NASA.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Frances Teel, NASA PRA Officer, NASA Headquarters, 300 E Street SW., JF0000, Washington, DC 20546, (202) 358-2225.
The KEEP is a job shadowing program designed to provide students with career exploration opportunities under the mentorship of a NASA Kennedy Space Center (KSC) subject matter expert. Participation in the program is limited to students who are U.S. citizens
Electronic.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
All meetings are held at 2:00 p.m.
Board Agenda Room, No. 11820, 1099 14th St. NW., Washington, DC 20570.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition . . . of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Henry Breiteneicher, Associate Executive Secretary, (202) 273-2917.
National Science Foundation.
Submission for OMB Review; Comment Request.
Under the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501 et seq.), and as part of its continuing effort to reduce paperwork and respondent burden, the National Science Foundation (NSF) is inviting the general public and other Federal agencies to comment on this proposed continuing information collection. This is the second notice for public comment; the first was published in the
Comments regarding these information collections are best assured of having their full effect if received by OMB within 30 days of publication in the
Written comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of NSF, including whether the information will have practical utility; (b) the accuracy of NSF'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 1265, Arlington, Virginia 22230 or send email to
Suzanne H. Plimpton, NSF Reports Clearance Officer at (703) 292-7556 or send email to
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
In 2003, to comply with E-government requirements, the nomination processes were converted to electronic submission through the National Science Foundation's (NSF) FastLane system or via other electronic systems as described in the individual nomination process. Individuals can now prepare nominations and references through
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Subsequently, Executive Order 10961 specified procedures for the Award by establishing a National Medal of Science Committee which would “receive recommendations made by any other nationally representative scientific or engineering organization.” On the basis of these recommendations, the Committee was directed to select its candidates and to forward its recommendations to the President.
In 1962, to comply with these directives, the Committee initiated a solicitation form letter to invite these nominations. In 1979, the Committee initiated a nomination form as an attachment to the solicitation letter. A slightly modified version of the nomination form was used in 1980.
The Committee has established the following considerations for selection of candidates:
a. The impact of an individual's body of work on the current state of his or her field of science or engineering;
b. Whether the individual's achievements are of an unusually significant nature in relation to the potential effects on the development of thought in his or her field of science or engineering;
c. Whether the nominee has demonstrated unusually distinguished service in the general advancement of science and/or engineering for the Nation, especially when accompanied by substantial contributions to the content of science;
d. The recognition of the nominee by peers within his or her community, and whether s/he is recognized for substantial impact in fields in addition to his/her discipline;
e. If the nominee has made contributions to innovation and industry;
f. Whether the nominee has demonstrated sustained influence on education through publications, teaching activities, outreach, mentoring, etc., and;
g. Whether the nominee's contributions have created significant positive impact for the Nation.
In 2003, the Committee changed the active period of eligibility to three years, including the year of nomination. After that time, candidates must be renominated with a new nomination package for them to be considered by the Committee.
Narratives are now restricted to three pages of text, as stipulated in the guidelines at:
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The Alan T. Waterman Award Committee was established by NSF to comply with the directive contained in Public Law 94-86. The Committee solicits nominations from members of the National Academy of Sciences, National Academy of Engineering, scientific and technical organizations, and any other source, public or private, as appropriate.
In 1976, the Committee initiated a form letter to solicit these nominations. In 1980, a nomination form was used which standardized the nomination procedures, allowed for more effective Committee review, and permitted better staff work in a short period of time. On the basis of its review, the Committee forwards its recommendation to the Director, NSF, and the National Science Board (NSB).
Candidates must be U.S. citizens or permanent residents and must be 35 years of age or younger or not more than seven years beyond receipt of the Ph.D. degree by December 31 of the year in which they are nominated. Candidates should have demonstrated exceptional individual achievements in scientific or engineering research of sufficient quality to place them at the forefront of their peers. Criteria include originality, innovation, and significant impact on the field.
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The NSB
1. Distinguished himself/herself through public service activities in science and technology.
2. Pioneered the exploration, charting, and settlement of new frontiers in science, technology, education, and public service.
3. Demonstrated leadership and creativity that have inspired others to distinguished careers in science and technology.
4. Contributed to the welfare of the Nation and mankind through activities in science and technology.
5. Demonstrated leadership and creativity that have helped mold the history of advancements in the Nation's science, technology, and education.
Nominations must include a narrative description about the nominee, a curriculum vitae (without publications), and a brief citation summarizing the
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Eligibility includes any individual or group (company, corporation, or organization) that has increased the public understanding of science or engineering. Members of the U.S. Government are not eligible for consideration.
Candidates for the individual and group (company, corporation, or organization) award must have made contributions to public service in areas other than research, and should meet one or more of the following criteria:
1. Increased the public's understanding of the processes of science and engineering through scientific discovery, innovation and its communication to the public.
2. Encouraged others to help raise the public understanding of science and technology.
3. Promoted the engagement of scientists and engineers in public outreach and scientific literacy.
4. Contributed to the development of broad science and engineering policy and its support.
5. Influenced and encouraged the next generation of scientists+ and engineers.
6. Achieved broad recognition outside the nominee's area of specialization.
7. Fostered awareness of science and technology among broad segments of the population.
Nominations must include a summary of the candidate's activities as they relate to the selection criteria; the nominator's name, address and telephone number; the name, address, and telephone number of the nominee; and the candidate's vita, if appropriate (no more than three pages).
The selection committee recommends the most outstanding candidate(s) for each category to the NSB, which approves the awardees.
Nominations remain active for a period of three years, including the year of nomination. After that time, candidates must be renominated with a new nomination for them to be considered by the selection committee.
• Presidential Awards for Excellence in Science, Mathematics and Engineering Mentoring (PAESMEM) program
In 1996, the White House, through the National Science and Technology Council (NSTC) and the Office of Science and Technology Policy (OSTP), established the Presidential Awards for Excellence in Science, Mathematics and Engineering Mentoring (PAESMEM) program. The program, administered on behalf of the White House by the National Science Foundation, seeks to identify outstanding mentoring efforts or programs designed to enhance the participation of groups (women, minorities and persons with disabilities as well as groups from low socioeconomic regions) underrepresented in science, mathematics and engineering. The awardees will serve as exemplars to their colleagues and will be leaders in the national effort to more fully develop the Nation's human resources in science, mathematics and engineering. This award is managed at NSF by the Directorate for Education and Human Resources (EHR).
The award will be made to U.S. citizens or U.S. permanent residents based on the following: (1) An individual who has demonstrated outstanding and sustained mentoring and effective guidance to a significant number of early career STEM professionals, students at the K-12, undergraduate, or graduate education level or (2) to an organization that, through its programming, has enabled a substantial number of students underrepresented in science, mathematics and engineering to successfully pursue and complete the relevant degree programs as well as mentoring of early career STEM professionals. Nominees must have served in a mentoring role for at least five years. Nominations are reviewed for impact, significance of the mentoring activity and quality of the mentoring activity. Nominations for organizational awards must demonstrate rigorous evaluation and/or assessment during the five-year period of the mentoring activity.
The awardees are hosted for two days in Washington, DC, for celebratory activities. Recipients of the PAESMEM award receive a monetary award in the amount of $10,000 from NSF and a commemorative Presidential certificate. If scheduling permits, the President meets with the mentors for a photo opportunity at the White House. The Director of OSTP and the Director of NSF present the awards to the mentors at an awards ceremony.
• Presidential Award for Excellence in Mathematics and Science Teaching
The Presidential Award for Excellence in Mathematics and Science Teaching (PAEMST) is the highest recognition that a kindergarten through 12th-grade mathematics or science teacher may receive for outstanding teaching in the United States. Enacted by Congress in 1983, this program authorizes the President to bestow 108 awards, assuming there are qualified applicants. In even-numbered years, nominations are accepted for elementary teachers (grades K-6); in odd-numbered years, secondary teachers (grades 7-12) are nominated. This award is managed at NSF by the Directorate for Education and Human Resources (EHR).
A teacher may be nominated by a principal, another teacher, students, members of the community, or the general public. Self-nominations are allowed. Awardees must be either U.S. Citizens or U.S. Permanent Residents. A Nominee must meet the following criteria to apply:
• Be highly qualified as deemed by their states, districts, or schools;
• Teach in one of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the four U.S. territories, including the Department of Defense Schools (DoDEA).
• Hold a degree or appropriate credentials in the category for which they are applying.
• Be a full-time employee of the school or school district.
• Have at least 5 years of mathematics or science teaching (including computer science) experience prior to application.
• Teach mathematics or science at the kindergarten through 6th grade level or at the 7th through 12th grade level in a public or private school.
• Not have received the national PAEMST award in any prior competition or category.
• Applicants complete a 12-page written document on five dimensions of outstanding teaching (content knowledge, pedagogy, assessment, leadership and professional development) and submit a video of one
• The applicant has a 7-month period (October to May) to complete applications and submit them for state review. The nomination period is from October to April.
• State coordinators convene state selection committees of prominent mathematicians, scientists, mathematics and science educators, and past awardees to select up to five mathematics and five science finalists for recognition at the state level and for submission to NSF. To ensure consistency, state selection committees review their applications using the same criteria and scoring information that was approved by OSTP.
• NSF (EHR) convenes a National Selection Committee of prominent mathematicians, scientists, mathematics and science educators, and past awardees that review the application packets of the state finalists and make recommendations to NSF. NSF reviews these recommendations and recommends one awardee in both mathematics and science for all eligible jurisdictions, when possible, to OSTP. Alternatively, NSF may recommend two awardees from a discipline in a jurisdiction, when warranted.
The awardees are hosted for 3-4 days in Washington, DC, for a variety of professional development sessions and celebratory activities. Each awardee receives a citation signed by the President and $10,000 from NSF. If scheduling permits, the President meets the teachers for a photo opportunity at the White House. The Director of OSTP and the Director of NSF present the citations to the teachers at an awards ceremony. Awardees also have the opportunity to meet their congressional representatives and education representatives from other federal agencies.
National Science Foundation
Notice of Permit Applications Received under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by September 8, 2014. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Division of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Li Ling Hamady, ACA Permit Officer, at the above address or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Public Law 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
November 10-November 20, 2014
Nuclear Regulatory Commission.
Draft regulatory guide; extension of comment period and correction.
The U.S. Nuclear Regulatory Commission (NRC) is correcting a notice that was published in the
This correction is effective immediately. Submit comments by October 10, 2014. Comments received after this date will be considered if practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.
Please refer to Docket ID NRC-2014-0163 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Paul J. Rebstock, telephone: 301-415-7000, email:
In the FR on July 11, 2014, in FR Doc. 2014-16165, on page 40164, in the first column, third paragraph under the heading “I. Obtaining Information and Submitting Comments,” the ADAMS Accession number “ML14149A361” is corrected to read “ML081630179.”
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an order imposing a civil monetary penalty to Geisser Engineering Corporation. The order requires Geisser Engineering Corporation to pay a civil penalty in the amount of $8,400.
Please refer to Docket ID NRC-2014-0186 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
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Thomas Marenchin, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2979, email:
The text of the Order and appendix are attached.
For the Nuclear Regulatory Commission.
Geisser Engineering Corporation (GEC) is the holder of a materials license issued by the State of Rhode Island, an NRC Agreement State. The Rhode Island license authorizes the possession, use, and storage of portable moisture density gauges containing radioactive material
An inspection of the GEC's activities was conducted on May 9, 2012, with continued in-office review through August 15, 2013. The inspection identified one violation involving multiple examples of GEC's failure to file for reciprocity with the U.S. Nuclear Regulatory Commission (NRC) prior to conducting work in NRC jurisdiction. In addition to the inspection activities, the NRC Office of Investigations conducted an investigation to determine whether a senior official of GEC deliberately engaged in the use of licensed material in areas of NRC jurisdiction without filing for reciprocity. The investigation concluded that the president and owner of GEC deliberately engaged in the use of licensed material in the State of Connecticut and at the Newport Naval Station in Rhode Island, areas of NRC jurisdiction, without filing for reciprocity with the NRC. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon GEC by letter dated March 20, 2014. The Notice states the nature of the violation, the provision of the NRC's requirements that GEC violated, and the amount of the civil penalty proposed for the violation. GEC responded to the Notice in a letter dated April 15, 2014. In its response and in subsequent communications with the NRC, GEC acknowledged the violation, but disputed the willful aspect of the violation (the willful aspect of the violation will be addressed in a separate correspondence) and requested that the NRC mitigate the civil penalty. Specifically, in an email correspondence dated April 30, 2014, the president of GEC stated, in part, that GEC was seeking relief from the proposed civil penalty due to the unexpected payment of a fine to the Commonwealth of Massachusetts (Commonwealth) for GEC's failure to file for reciprocity prior to using a nuclear density gauge in the Commonwealth's jurisdiction. The president also stated that payment of the proposed NRC civil penalty would pose a financial hardship for GEC.
After consideration of GEC's response and statement of fact, explanation, and argument for mitigation contained therein, the NRC has determined, as set forth in the Appendix to this Order, there is an adequate basis to reduce the civil penalty for the associated NRC violation, that the violation occurred as stated, that the amount of the proposed penalty should be reduced by $2800 (25%), and a civil penalty in the amount of $8,400 should be imposed.
In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT: GEC pay a civil penalty in the amount of $8,400 within 30 days of the date of this Order, in accordance with NUREG/BR-0254. In addition, at the time payment is made, GEC shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.
In accordance with Title 10 of the
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007, as amended by 77 FR 46562, August 3, 2012), codified in pertinent part at 10 CFR Part 2, Subpart C. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form available from the NRC's Electronic Information Exchange (EIE). In order to serve documents through EIE, users will be required to install a web browser plug-in from the NRC Web site. Further information on the web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
After the Office of the Secretary has created a docket and a participant has obtained a digital ID certificate, then the participant may submit a demand for hearing or request for hearing or petition for leave to intervene through the EIE. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket, which is available to the public at
If a person other than GEC requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f). If a hearing is requested by GEC or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. In the absence of any request for a hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 30 days from the date this Order is issued without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received.
If payment has not been made by the time specified above, the matter may be referred to the Attorney General for further action, including collection.
Dated at Rockville, Maryland, this 31st day of July 2014
For the Nuclear Regulatory Commission
On March 20, 2014, a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was issued for a violation of U.S. Nuclear Regulatory Commission (NRC) requirements involving the Geisser Engineering Corporation's (GEC's) failure to file for reciprocity prior to conducting work in NRC jurisdiction. The violation was identified during an NRC inspection. GEC responded to the Notice in a letter dated April 15, 2014. GEC acknowledged the violation, but requested mitigation of the civil penalty assigned to GEC. The NRC's evaluation and conclusion regarding GEC's request to mitigate the civil penalty are as follows:
During an NRC inspection conducted between May 9, 2012, and August 15, 2013, and an investigation initiated on June 20, 2012, and completed on April 26, 2013, multiple occurrences of a violation of NRC requirements were identified. In accordance with the NRC Enforcement Policy, the NRC proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violation and associated civil penalty are set forth below:
10 CFR 30.3 requires, in part, that except for persons exempt as provided in this part and part 150 of this chapter, no person shall own, possess, or use byproduct material except as authorized in a specific or general license issued pursuant to the regulations in 10 CFR 30.
10 CFR 150.20(a) states, in part, that any person who holds a specific license from an Agreement State is granted an NRC general license to conduct the same activity in Non-Agreement States and areas of exclusive Federal jurisdiction within Agreement States, subject to the provisions of 10 CFR 150.20(b).
10 CFR 150.20(b)(1) requires, in part, that any person engaging in activities in Non-Agreement States shall, at least 3 days before engaging in each such activity, file a submittal containing an NRC Form 241, “Report of Proposed Activities in Non-Agreement States,” a copy of its Agreement State specific license, and the appropriate fee, with the Regional Administrator of the appropriate NRC regional office.
Contrary to the above, between October 21, 2009, and June 23, 2011, Geisser Engineering Corporation, which is authorized for possession and use of radioactive material under a Rhode Island Agreement State license, used portable devices containing byproduct material within NRC jurisdiction on 22
This is a Severity Level II violation. (Section 6.9) Civil Penalty—$11,200 (EA-13-105)
In its letter dated April 15, 2014, GEC acknowledged the violation, but disagreed with the NRC's conclusion that the GEC president willfully (i.e., deliberately) caused the violation. The NRC's re-evaluation of the willful aspect of the violation is addressed in a separate correspondence to the president of GEC.
In its response, GEC requested relief from the civil penalty and requested that the NRC consider the penalty imposed on GEC by the Commonwealth of Massachusetts for the use of a nuclear density gauge in its jurisdiction without filing for reciprocity.
In the April 15, 2014, letter, and in an email correspondence dated April 30, 2014, GEC requested relief from the proposed civil penalty due to the unexpected payment to the Commonwealth of Massachusetts for the use of a nuclear density gauge in its jurisdiction without filing for reciprocity. Specifically, GEC stated that payment of the additional NRC proposed civil penalty would pose a financial hardship for GEC. To support its request, on May 5, 2014, GEC submitted by email GEC's tax returns for calendar years 2011 and 2012.
In response to GEC's request, the NRC reviewed GEC's financial information, the documentation included as part of the inspection and investigation, and the applicable enforcement guidance to determine the appropriate action.
The Enforcement Policy Section 2.3.4 allows the use of discretion in application of a Civil Penalty, including a secondary consideration of the licensee's ability to pay. Specifically, it is not the NRC's intention that the economic impact of a civil penalty be so severe that it puts a licensee out of business. However, the Enforcement Policy Section 3.6 also states that one of the civil penalty assessment factors to be considered in applying discretion is the presence of willful behavior that caused a noncompliance with NRC requirements in order to obtain an economic benefit. The NRC determined that Mr. Geisser, President of GEC, acted deliberately and provided GEC an economic benefit of not paying NRC reciprocity fees for calendar years 2009, 2010, and 2011. The reciprocity fees for those years provided GEC an economic benefit of approximately $6,000.
In the NRC's evaluation of GEC's request, the NRC considered the potential financial implications and hardships that payment of the proposed civil penalty would place on GEC, the financial penalty taken previously against GEC by the Commonwealth of Massachusetts, and the economic benefit GEC received for not complying with NRC requirements. Specifically, the NRC considered that a substantial financial penalty has already been imposed on GEC by the Commonwealth for the same violation during the same time-frame, although in different jurisdictions, and that payment of the proposed NRC civil penalty may pose a financial hardship for GEC.
The NRC determined that GEC provided an adequate basis that the NRC civil penalty may pose a financial hardship for GEC. However, while some reduction of the full civil penalty is warranted, the NRC also considered that the civil penalty should account for the economic benefit that GEC gained by not complying with NRC requirements to file for reciprocity with the NRC and pay the required fees.
Based on its evaluation, the NRC has concluded that the violation occurred as stated and that GEC provided an adequate basis for mitigation of the civil penalty. Consequently, a civil penalty in the amount of $8,400 is imposed.
Nuclear Regulatory Commission.
Draft generic letter; public meeting and request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is seeking public comment on a draft generic letter to request information from licensees to address the treatment of natural phenomena hazards in fuel cycle facilities. The NRC has determined that facility-specific information is necessary to confirm that fuel cycle facilities are in compliance with appropriate regulatory requirements. The NRC will use information submitted by licensees in response to the generic letter if additional regulatory action is warranted.
Submit comments by November 6, 2014. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Jonathan Marcano, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-287-9063, email:
Please refer to Docket ID NRC-2014-0187 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
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Please include Docket ID NRC-2014-0187 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is issuing draft Generic Letter 2013 XX-XX: “Treatment of Natural Phenomena Hazards In Fuel Cycle Facilities” (ADAMS Accession No. ML13157A158), to request information from addressees to demonstrate if compliance is being maintained with the regulatory requirements and applicable license conditions regarding the treatment of natural phenomena events in the facilities' safety assessments; and to determine if additional NRC regulatory action is necessary to ensure that licensees are in compliance with their current licensing basis and existing NRC regulations.
On March 11, 2011, the Tohoku-Taiheiyou-Oki earthquake occurred near the east coast of Honshu, Japan. This magnitude 9.0 earthquake and the subsequent tsunami caused significant damage to at least four of the six units of the Fukushima Dai-ichi nuclear power station and, as a result, there was a loss of offsite and onsite electrical power systems.
On March 23, 2011, the Chairman of the NRC, via Tasking Memorandum—COMGBJ-11-0002, “NRC Actions Following the Events in Japan,” directed the NRC's Executive Director for Operations to establish the NRC Near-Term Task Force (NTTF) to evaluate available technical and operational information from the events in Japan following the March 11, 2011, earthquake and tsunami at the Fukushima Dai-ichi nuclear power station. The NTTF was tasked to consider lessons learned from the event and to develop recommendations to improve the regulatory systems for reactors in the United States and their applicability to licensed facilities other than power reactors.
On July 12, 2011, in light of the accident at the Fukushima Dai-ichi nuclear power plant, the NTTF presented a set of recommendations as a result of a systematic and methodical review of NRC processes and regulations applicable to nuclear power reactors in the United States (ADAMS Accession No. ML111861807). The NTTF recommendations are intended to clarify and strengthen the regulatory framework for protection against natural disasters, mitigation and emergency preparedness of nuclear power reactors in the United States.
For fuel cycle facilities, in light of the lessons learned from the accident at the Fukushima Dai-ichi nuclear power plant, the staff performed a systematic evaluation and inspection of selected fuel cycle facilities to confirm that licensees were in compliance with regulatory requirements and license conditions; and to evaluate their readiness under natural phenomena hazards (NPH) events and other licensing bases events related to NPH. The staff's assessment considered the NTTF recommendations to determine whether additional regulatory actions by the NRC are warranted.
The staff completed inspections at selected fuel facilities and the results were used to perform a systematic evaluation of the processes and regulations applicable to fuel facilities. The results of the evaluation allow the staff to conclude that the current regulatory approach and requirements of these licensees continues to serve as a basis for reasonable assurance of adequate protection of public health and safety. However, the staff identified generic issues regarding compliance with the current regulatory framework with regards to the treatment of certain natural phenomena events in the facilities (uranium conversion, enrichment and fuel fabrication) safety assessments. The NRC is issuing this draft generic letter to request information from licensees to verify that compliance is being maintained with regulatory requirements and license conditions regarding the treatment of natural phenomena events.
The NRC is considering the cumulative effects of regulation (CER) as they relate to this Generic Letter. The CER considers the challenges licensees face in addressing the implementation of new regulatory positions, programs, and requirements (e.g., rulemaking, guidance, backfits, inspections). The CER initiative stems from the total burden imposed on licensees by the NRC from simultaneous or consecutive regulatory actions that can adversely affect the licensee's capability to implement those requirements while continuing to operate or construct its facility in a safe and secure manner. The NRC proposed several rulemaking process enhancements to address CER in SECY-11-0032, “Consideration of the Cumulative Effects of Regulation in the Rulemaking Process,” dated October 11, 2011 (ADAMS Accession No. ML112840466). In SECY-12-0137, “Implementation of the Cumulative Effects of Regulation Process Changes,” dated October 5, 2012 (ADAMS Accession No. ML12223A162) built upon the recommendations in SECY-11-0032. In its Staff Requirements Memorandum to SECY-12-0137 (ADAMS Accession No. ML13071A635), the Commission directed the staff to, among other items, “continue to develop and implement outreach tools that will allow NRC to consider more completely the overall impacts of multiple rules, orders, generic communications, advisories, and other regulatory actions on licensees and their ability to focus effectively on items of greatest safety importance.”
With regard to this generic letter, the NRC requests that licensees comment about any CER challenges they may face. Specifically, the NRC requests comment on the following questions:
a. In light of any current or projected cumulative effects, does this generic letter request provide sufficient time for licensees to respond with the information requested, including any
b. If a current or projected cumulative effect poses a significant challenge, what should be done to address it? For example, if more time is required to develop and provide the information, what period of time is sufficient? Are there equally effective alternatives to providing the requested information to the NRC that reduce the cumulative effects?
c. Do other (NRC or other regulatory agency) regulatory actions (e.g., Orders, rules, generic letter, bulletins, 50.54(f) requests) influence licensee responses to this draft generic letter? If so what are they and do you have a suggested approach to reduce the cumulative effects in light of these other regulatory actions?
d. Are there other projects that licensees are undertaking, plan to undertake, or should be undertaking that provide greater safety benefit, that might be displaced or delayed as a result of the expenditure of effort and resources to respond to this generic letter?
e. Are there unintended consequences associated with responding to this generic letter at this time?
f. Please comment on the NRC's supporting justification for this generic letter.
The NRC is requesting public comments on the draft generic letter. The NRC plans to hold a public meeting approximately 45 days into the comment period to discuss draft Generic Letter 2013 XX-XX: “Treatment of Natural Phenomena Hazards In Fuel Cycle Facilities” (ADAMS Accession No. ML13157A158), to engage industry stakeholders and members of the public in a discussion of this issue. This meeting is scheduled during the comment period to allow industry stakeholders and members of the public time to submit comments on the proposed generic communication before the comment period closes. All comments that are to receive consideration in the final generic letter must still be submitted electronically or in writing as indicated in the
Additional details regarding the meeting will be posted at least 10 days prior to the public meeting on the NRC's Public Meeting Schedule Web site at
For the Nuclear Regulatory Commission.
On April 23, 2014, NASDAQ OMX PHLX LLC (“Exchange” or “Phlx”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Phlx Rule 1014, Commentary .05(c)(ii), to afford priority in open outcry trading to in-crowd participants over out-of-crowd Streaming Quote Traders (“SQTs”)
Currently, Commentary .05(c)(i) to Phlx Rule 1014 provides that, in the event that a Floor Broker
The Exchange proposes to eliminate the 500 contract minimum order size from Phlx Rule 1014, Commentary .05(c)(ii). As amended, the rule would afford priority to in-crowd participants over Non-Crowd Participants and out-of-crowd broker-dealer limit orders in crossing, facilitation, and solicited orders regardless of the size of those orders. The Exchange states that it initially permitted Non-Crowd Participants to participate in Floor Broker crosses to foster electronic options trading.
As noted above, the Commission received two comment letters from one commenter
In its first letter, the commenter opposes the Proposal and requests that the Commission institute proceedings to disapprove the Proposal. The commenter argues that the Proposal unfairly denies electronic participants the ability to participate in the execution of open outcry orders along with in-crowd participants at the same price.
The commenter also argues that, because no trade information is disseminated about orders executed on the floor to electronic participants, who may be willing to provide liquidity to orders executed on the Exchange floor, such orders will not benefit from potential price improvement built into electronic auctions.
In response to the commenter's concerns regarding in-crowd liquidity, Phlx states that on-floor liquidity on Phlx in many issues exceeds the displayed wider electronic markets.
In its second letter, the commenter replies to the Phlx Response Letter and reiterates its request that the Commission institute proceedings to disapprove the Proposal. In response to Phlx's statement that, based on Phlx's experience, on-floor liquidity on Phlx in many issues exceeds the displayed wider electronic markets,
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act, the Commission is providing notice of the grounds for disapproval under consideration. In particular, Section 6(b)(5) of the Act
As discussed above, the Proposal, as modified by Amendment No. 1, would afford priority to in-crowd participants over Non-Crowd Participants and out-of-crowd broker-dealer limit orders on the limit order book in crossing, facilitation, and solicited orders regardless of order size. The Exchange's current rule affords priority to in-crowd participants over Non-Crowd Participants and out-of-crowd broker-dealer limit orders on the limit order book in crossing, facilitation, and solicited orders with a size of at least 500 contracts on each side. As noted above, the commenter opposing the Proposal raises concerns, among other things, as to whether the Proposal unfairly denies electronic participants the ability to participate in the execution of open outcry orders along with in-crowd participants at the same price. The commenter further believes that the Proposal will encourage Phlx participants to send orders to the floor where the Phlx participant may receive a higher trade allocation and be able to internalize the trade—rather than executing the order in the electronic market where the customer order may be subject to more intense price competition. The commenter further stated its belief that insulating small order customers brought to the floor from competition by electronic participants may cause more orders to be crossed at prices that have not been sufficiently vetted by the participants most likely to offer price improvement.
The Commission believes that questions are raised as to whether the Proposal, as modified by Amendment No. 1, is consistent with: (1) The requirements of Section 6(b)(5) of the Act, including whether the Exchange's proposed revisions to its rules regarding the order of priority in open outcry are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest; and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers; and (2) the requirements of Section 6(b)(8) of the Act, including whether the Exchange's proposed revisions to its rules regarding the order or priority in open outcry impose any unnecessary or inappropriate burden on competition. The Commission believes that the issues raised by the Proposal can benefit from additional consideration and evaluation.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the concerns identified above, as well as any others they may have with the Proposal, as modified by Amendment No. 1. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change, as modified by Amendment No. 1, is inconsistent with Sections 6(b)(5) and 6(b)(8) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written views, data, and arguments concerning Amendment No. 1 and regarding whether the proposed rule change, as modified by Amendment No. 1, should be approved or disapproved by August 29, 2014. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by September 12, 2014. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 7, 2014, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-ICEEU-2014-11 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ICE Clear Europe has stated that the principal purpose of the proposed rule change is to amend certain ICE Clear Europe procedural rules (“Procedures”) in order to comply with requirements under the European Market Infrastructure Regulation (including regulations and implementing technical standards thereunder, “EMIR”)
As described in more detail in the Rule Submission, in order to comply with EMIR, ICE Clear Europe is proposing changes to the structure of customer accounts for cleared transactions. The amendments to the Clearing Rules would establish two new types of individually segregated accounts, Individually Segregated Margin-flow Co-mingled Accounts and Individually Segregated Sponsored Accounts. The proposed changes to the Clearing Rules would also establish multiple new types of omnibus accounts, Segregated Customer Omnibus Accounts (separately for each product: FX, F&O and CDS) and Segregated TTFCA Customer Omnibus Accounts (separately for each product: FX, F&O and CDS) as well as Omnibus Margin-flow Co-mingled Accounts. The amendments to the Procedures described herein are intended to further implement these changes to the Clearing Rules, as well as make various other consolidating, conforming and clarifying changes and drafting improvements to the existing Procedures.
ICE Clear Europe proposes to make amendments to the following Procedures: The Clearing Procedures, Finance Procedures, Membership Procedures, Business Continuity Procedures, Complaint Resolution Procedures, General Contract Terms, CDS Procedures, FX Procedures, OTC FX Product Guide and Published Terms for FX Contracts, Auction Terms for FX Default Auctions, Auction Terms for F&O Default Auctions and Delivery Procedures. The CDS Operational Procedures are being eliminated as they are no longer applicable. The proposed Procedure amendments are described as follows.
ICE Clear Europe proposes to make certain common changes to all relevant sections of the Procedures. In each such section of the Procedures, ICE Clear Europe would add provisions addressing governing law, arbitration and submission to jurisdiction that are substantially the same as those set forth in the Clearing Rules (specifically, Rules 117 and 1608). In addition, various references to Sponsored Principals would be added throughout, as well as conforming changes to reflect changes in defined terms in the Clearing Rules, such as the use of “Buying Counterparty” and “Selling Counterparty”.
ICE Clear Europe proposes revisions to its Clearing Procedures to incorporate the additional categories of customer accounts and relevant defined terms and other clarifications for margin for the relevant product categories (F&O, CDS and FX). The proposed revisions also include conforming changes, implementing changes and drafting improvements related to the transfer and close out of customer positions. In addition, the revisions would addresses certain matters with respect to Customer-CM Collateral provided to Non-FCM/BD Clearing Members, establish certain recordkeeping requirements for Clearing Members with respect to Customers (including as to the identity and default portability preferences thereof), and adopt certain additional defined terms and procedures relating to position transfers made under Rule 408(a)(i) and Part 12 of the Clearing Rules, as well as paragraph 6 of the Clearing Procedures.
ICE Clear Europe proposes to revise the Finance Procedures to incorporate the new account categories (and in particular Sponsored Principals), accommodate the use of pledged collateral arrangements as well as title transfer collateral, make certain revisions concerning margin requirements for F&O and FX contracts, and make other conforming and clarifying changes. The Finance Procedures would also be revised to incorporate certain parameters for the FX guaranty fund and to allow the Clearing House to allow different currencies to be used for the guaranty fund contributions for any product category. In addition, Revised Paragraph 15 of the Finance Procedures would specify additional parameters for the Clearing House contributions to the three guaranty funds, as described in further detail in the Procedures Submission.
The Membership Procedures, which set out various aspects of the clearing membership application process, would be modified to also cover Sponsors and Sponsored Principals, in substantially the same manner as for Clearing Members. Other proposed revisions include various updates to defined terms and drafting clarifications as further described in the Procedures Submission.
ICE Clear Europe proposes to revise the CDS Procedures to implement the Sponsored Principal model and make various updates to defined terms (and conforming references to terms) and make drafting improvements for clarity and conformity, as discussed in more detail in the Procedures Submission. As noted in the Rule Submission, various membership requirements in Paragraph 2 have been moved to Part 2 of the Clearing Rules, and Paragraph 6, which addresses the Clearing House's contributions to the CDS guaranty fund, has been removed and moved to the Finance Procedures. Paragraph 13, which addresses certain aspects of customer transactions, including transfer of customer positions, has been moved to paragraph 6 of the Clearing Procedures (and generalized to apply all product categories, not just CDS).
Finally, ICE Clear Europe proposes to make clarifying, conforming and implementing changes to a number of other Procedures. Specifically, the FX Procedures would be revised to update various definitions, conform to new defined terms and other provisions of the updated Clearing Rules, incorporate the Sponsored Principal model, and make various other conforming and clarifying revisions as discussed in more detail in the Procedures Submission. The Auction Terms for F&O Default Auctions would be revised to incorporate participation by Sponsored Principals as well as a number of other conforming and clarifying revisions to the auction and bidding process as further described in the Procedures Submission. In addition, ICE Clear Europe proposes various amendments to the Delivery Procedures. In many cases these revisions do not strictly relate to EMIR implementation but reflect other general updates and conforming changes. ICE Clear Europe also proposes to make various non-substantive conforming changes and drafting clarifications to the Business Continuity Procedures and Complaint Resolution Procedures.
Section 19(b)(2)(C) of the Act
The Commission finds that the proposed amendments to the Procedures are consistent with the requirements of Section 17A of the Act
Section 19(b)(2)(C)(iii) of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 30, 2014, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-ICEEU-2014-10 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ICE Clear Europe is proposing this change to amend certain of the ICE Clear Europe credit default swaps (“CDS”) risk policies (“Risk Policy Amendments”) in order to facilitate compliance with requirements under the European Market Infrastructure Regulation (including regulations thereunder, “EMIR”)
ICE Clear Europe states that the relevant policies being modified by the proposed change are (i) the CDS Risk Policy (“Risk Policy”); (ii) the Risk Model Description (“Model Description”); (iii) the CDS Clearing Back-Testing Framework (“Back-Testing Framework”); (iv) the CDS Clearing Stress-Testing Framework (“Stress-Testing Framework”); and (v) the CDS Default Management Framework (“Default Management Framework”).
ICE Clear Europe states that the changes to the Risk Policy amend the calculation of CDS initial margin requirements to comply with margin requirements under EMIR Article 41 and Article 24 of the implementing Regulatory Technical Standards.
ICE Clear Europe states that similar amendments to those described above are also made to the Model Description. ICE Clear Europe contends that under the revised Model Description, the
ICE Clear Europe states that the CDS MC approach aims to model the spread risk component of initial margin by combining individual risk factors (“RFs”), i.e., single name or index family of instruments, into a copula. ICE Clear Europe further states that marginal distributions for individual RFs are joined together under a Student-t copula. In this way, ICE Clear Europe contends, the model preserves historical behavior of RFs and their dependencies and that the value-at risk (VaR) for the profit and loss distribution can be estimated by sampling from this copula.
ICE Clear Europe contends that the MC method offers a number of advantages over the existing scenario-based spread response method (the “Decomp SR”), in that (1) the dependence structure of RFs is encoded into the copula, as opposed to the long-short offsets algorithm used to determine portfolio benefits under the Decomp SR; and (2) the copula can also capture tail dependence, such that various extreme scenarios can be easily simulated.
ICE Clear Europe states that the scenario-based approach of the spread risk component with its portfolio benefit assumptions is generally expected to result in a more conservative requirement when compared to the MC VaR approach for the same coverage level. ICE Clear Europe further states that in order to ensure compliance with the 99.5% confidence interval requirement for OTC derivatives under EMIR, the final spread response charge will be determined as the more conservative of the Decomp SR and the MC VaR calculated at a 99.5% confidence interval.
ICE Clear Europe also states that the CDS pricing model, used since the inception of clearing, has also been attached to the Risk Model Description as an annex.
ICE Clear Europe states that the changes to the Back-Testing Framework are also meant to implement the 99.5% confidence interval. ICE Clear Europe states that the historical volatility calculation has changed in the Back-Testing Framework to use data from, at minimum, the most recent year (or, if shorter, the period in which the relevant contract has been cleared). In addition, ICE Clear Europe contends that, per the amendments, on at least a monthly basis, the CDS Risk Department will report the CDS back testing results and analysis to the CDS Risk Committee in order to seek their review and, if needed, their recommendations of the CDS margin model. ICE Clear Europe also states that CDS back testing results and analyses are made available to all CDS Clearing Members and clients (where known to ICE Clear Europe) for their own portfolios and that disclosed information is aggregated in a form that does not breach confidentiality. ICE Clear Europe also contends that the policy also provides a framework for monitoring and remediating breaches that arise during back-testing, based on the so-called “Basel Traffic Light System,” depending on the number and magnitude of the exceedances. Finally, ICE Clear Europe states that the Back-Testing Framework will be reviewed and approved by the CDS Risk Committee and ICE Clear Europe Board at least annually.
ICE Clear Europe states the Stress-Testing Framework is amended to provide further detail as to its use of daily stress testing, which allows ICE Clear Europe to discover any potential weaknesses in the risk methodologies as well as to exercise short-term measures if the tests reveal that any counterparties are inadequately collateralized. ICE Clear Europe contends that a detailed analysis of the stress testing and sensitivity testing results is to be performed by the CDS Risk Department at least on a monthly basis, or more frequently in stressed market conditions, to ensure the adequacy of the existing stress test scenarios and framework. ICE Clear Europe states the Stress-Testing Framework amendments would also add pure historical scenarios, as required under EMIR, that are applied at the single name level, using the same date across all instruments. ICE Clear Europe also states that single-name specific stress scenarios are based on the same 5-day period when the on-the-run indices had the greatest observed related spread increases or decreases. ICE Clear Europe also states that the guaranty fund stress scenario has also been clarified, and is designed to account for: (1) The occurrence of credit events for two Clearing Members and three reference entities on which the defaulted Clearing Members sold protection, (2) adverse contracting or widening credit spread scenarios, (3) adverse widening of Index-single name “basis,” and (4) adverse changes of the default-free discount terms structure. ICE Clear Europe contends that CDS stress testing results and analyses are made available to all CDS Clearing Members and clients (where known to ICE Clear Europe) for their own portfolios and disclosed information is aggregated in a form that does not breach confidentiality. Finally, ICE Clear Europe states the CDS Stress Testing framework is to be reviewed and approved by the CDS Risk Committee and ICE Clear Europe Board at least annually.
ICE Clear Europe contends that minor improvements have been made to the Default Management Framework, namely, (1) ICE Clear Europe will conduct a quarterly (rather than annual) review of its Default Management Framework, and (2) ICE Clear Europe will perform a mock Clearing Member default test at least annually.
Section 19(b)(2)(C) of the Act
The Commission finds that the proposed rule change is consistent with Section 17A of the Act
Section 19(b)(2)(C)(iii) of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 30, 2014, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-ICEEU-2014-09 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The principal purpose of the proposed change is to amend the ICE Clear Europe Clearing Rules in order to comply with requirements under the European Market Infrastructure Regulation (including regulations and implementing technical standards thereunder, “EMIR”)
ICE Clear Europe states that the principal change will be to implement changes to the structure of customer accounts for cleared transactions to enhance segregation options for customers of Clearing Members. According to ICE Clear Europe, pursuant to EMIR,
The proposed rule change will establish two new types of individually segregated accounts for Clearing Members that are not registered as a futures commission merchant with the Commodity Futures Trading Commission (“CFTC”) and/or as a broker-dealer with the Commission (“Non-FCM/BD Clearing Members”): Individually Segregated Margin-flow Co-mingled Accounts and Individually Segregated Sponsored Accounts. With respect to an Individually Segregated Sponsored Account, ICE Clear Europe proposes the concept of treating a customer as a Sponsored Principal, capable of entering into contracts with ICE Clear Europe directly, with a Clearing Member serving as Sponsor to be jointly and severally liable with the Sponsored Principal for the Sponsored Principal's obligations to ICE Clear Europe. ICE Clear Europe has proposed extensive revisions to its Clearing Rules designed to implement the Sponsored Principal model.
The proposed rule change will also establish multiple new types of omnibus accounts: Segregated Customer Omnibus Accounts (separately for each product: FX, F&O and CDS) and Segregated TTFCA Customer Omnibus Accounts (separately for each product: FX, F&O and CDS), as well as Omnibus Margin-flow Co-mingled Accounts.
ICE Clear Europe proposes making these new individually segregated and omnibus accounts available only to Non-FCM/BD Clearing Members and their customers. For Clearing Members registered as a futures commission merchant with the CFTC and/or as a broker-dealer with the Commission, as applicable (“FCM/BD Clearing Members”) and their customers, ICE Clear Europe proposes that it will not offer individual client segregation at this time, and the existing account types and segregation requirements for client assets (which are required under applicable law) would be maintained.
ICE Clear Europe further proposes changes relating to the parameters for determining the relevant guaranty funds for the F&O, CDS and FX businesses to meet the requirements under EMIR.
Pursuant to EMIR,
In addition, ICE Clear Europe proposes changes relating to membership criteria, including requirements as to operational and financial capacity, compliance with sanctions regimes, and having a well-founded legal framework to support clearing operations. The proposed rule change also imposes a requirement that additional conditions imposed on Clearing Membership be proportional to the risk brought by the applicant and additional requirements around rejection or denial of applications. ICE Clear Europe also proposes changes that contain additional obligations on Clearing Members that are driven by EMIR requirements.
ICE Clear Europe further proposes changes to implement EMIR requirements related to trade repository reporting.
Finally, ICE Clear Europe also proposes certain other changes to its Clearing Rules that implement the foregoing, update various definitions, conform to new defined terms and other provisions of the updated Clearing Rules, incorporate the Sponsored Principal model and other new account structures, and make various other conforming and clarifying revisions that constitute drafting improvements, as more fully described in its filing with the Commission.
Section 19(b)(2)(C) of the Act
The Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to ICE Clear Europe. With respect to the proposed rule change intended to implement the new individual and omnibus segregation accounts, ICEEU contends that these changes provide strengthened options for the segregation and safeguarding of customer funds to customers of Non-FCM/BD Clearing Members. The existing, non-individually segregated models will also generally remain available for those customers that want them. In addition, the customer account structures and segregation requirements for FCM/BD Clearing Members are not being changed. Accordingly, ICEEU states that the proposed rule changes will enhance, and not reduce, the level of customer protection available under the current ICE Clear Europe rules. The Commission finds that the proposed rule changes implementing the new individual and omnibus segregation accounts reduce the risk of loss to the Clearing House and market participants associated with a default by a Clearing Member or its customer and therefore, contribute to the safeguarding of securities and funds associated with derivative transactions that are in the custody or control of the Clearing House or for which it is responsible, consistent with Section 17(A)(b)(3)(F) of the Act.
With respect to the proposed rule change regarding guaranty fund, ICEEU contends that the proposed changes do not themselves change ICE Clear Europe's methodology with respect to its margin or guaranty fund requirements. ICE Clear Europe currently implements risk management methodology that takes into account the parameters required to comply with all applicable laws and intends to continue maintaining risk management methodology with respect to margin and the guaranty fund that will comply with all applicable laws. Therefore, the Commission finds that the proposed rule change will not adversely affect ICE Clear Europe's maintenance of financial resources that support its clearing operations and is consistent with the requirement of safeguarding securities and funds in the custody or control of the clearing agency,
With respect to customer portability, direct payment to customers, and the option for a Clearing Member to request that ICE Clear Europe transfer a customer's positions and margin to the Clearing Member's proprietary account, the Commission finds that the proposed rule change enhances ICE Clear Europe's ability to manage defaults and is consistent with the Act, and rules and regulations thereunder applicable to ICE Clear Europe, in particular the requirement of safeguarding securities and funds in the custody or control of the clearing agency and the requirement that a clearing agency establishes default procedures that ensure timely action to contain losses and liquidity pressures and to continue meeting its obligations in the event of a participant default.
Further, the Commission finds the proposed changes relating to membership criteria and obligations improves the financial and operational requirements for Clearing Membership and clarifies the Clearing House's ability to impose additional conditions on Clearing Membership and to reject or deny Clearing Membership applications, which is consistent with the Act, in particular the requirements that the rules of a clearing agency are designed to promote the prompt and accurate clearance and settlement, to foster cooperation and coordination with persons engaged in the clearance and settlement, and not designed to permit unfair discrimination in the admission of participants or among participants in the use of the clearing agency.
With respect to the proposed rule change to implement the reporting requirements under EMIR, the Commission finds that the proposed rule change only requires ICE Clear Europe or its counterparties to ensure that contract data are reported and leaves flexibility for ICE Clear Europe and its counterparties to determine who would be the reporting party undertaking the reporting obligations. The Commission finds that the proposed rule change is consistent with the Act, in particular the requirement that the rules of a clearing agency are designed to remove impediments to and perfect the mechanism of a national system for prompt and accurate clearance and settlement, and to protect investors and the public interest.
Finally, the Commission finds that the other proposed changes to ICE Clear Europe's Clearing Rules are consistent with Section 17A of the Act, and rules and regulations thereunder applicable to ICE Clear Europe. In particular, the Commission believes that these proposed changes are principally designed to further implement the other changes to the Clearing Rules described above that are consistent with the Act by updating various definitions, conforming to new defined terms and other provisions of the updated Clearing Rules, and making various other conforming and clarifying revisions that constitute drafting improvements, and therefore are designed to promote prompt and accurate clearance and settlement of securities transactions and, to the extent applicable, derivative agreements, contracts, and transactions, and to assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible, consistent with Section 17A(b)(3)(F) of the Act.
Section 19(b)(2)(C)(iii) of the Act
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On April 16, 2014, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the Shares pursuant to NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares. The Funds are offered by Fidelity Merrimack Street Trust (“Trust”), a Massachusetts business trust.
The Exchange represents that the Manager and the Sub-Advisers are not broker-dealers but are affiliated with one or more broker-dealers, and that each (1) has implemented a fire wall with respect to affiliated broker-dealers regarding access to information concerning the composition of or changes to the portfolios, and (2) will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding the portfolios.
The Exchange has made the following representations concerning the Fund.
The Exchange states that the Fidelity Investment Grade Bond ETF would seek a high level of current income. The Manager would use the Barclays U.S. Aggregate Bond Index (“Aggregate Index”) as a guide in structuring the Fund and selecting its investments. The Manager would manage the Fund to have similar overall interest rate risk to the Aggregate Index.
Normally,
The Fund may hold uninvested cash or may invest it in cash equivalents such as: Repurchase agreements; shares of investment companies, including exchange traded funds registered under the 1940 Act that primarily hold short-term bonds; or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients).
The Fidelity Limited Term Bond ETF would seek to provide a high rate of income. The Manager would use the Fidelity Limited Term Composite Index (“Composite Index”) as a guide in structuring the Fund and selecting its investments. The Manager would manage the Fund to have similar overall interest rate risk to the Composite Index.
Normally, the Manager would invest at least 80% of the Fund's assets in investment-grade Debt Securities (those of medium and high quality). The Manager may invest the Fund's assets in Debt Securities of foreign issuers in addition to securities of domestic issuers. Additionally, the Fund may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short-term bond ETFs or mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients).
According to the Registration Statement, Fidelity Total Bond ETF would seek a high level of current income. The Manager would use the Barclays U.S. Universal Bond Index (“Universal Index”) as a guide in structuring the Fund and selecting its investments. The Manager would use the Universal Index as a guide in allocating the Fund's assets across the investment-grade, high yield, and emerging market asset classes (as discussed below). The Manager would manage the Fund to have similar overall interest rate risk to the Universal Index.
Normally, the Manager would invest at least 80% of the Fund's assets in Debt Securities. The Manager would allocate the Fund's assets across investment-grade, high yield, and emerging market Debt Securities. The Manager may invest up to 20% of the Fund's assets in lower-quality Debt Securities.
According to the Registration Statement, the Fund may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short-term bond ETFs or mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients).
According to the Registration Statement, the Manager would allocate the Fund's assets among different asset classes, using the composition of the Universal Index as a guide, and among different market sectors (for example, corporate, asset-backed, or government securities) and different maturities based on its view of the relative value of each sector or maturity.
As described above, although the Manager would normally invest at least 80% of assets of the Fidelity Investment Grade Bond ETF and Fidelity Limited Term Bond ETF in investment-grade Debt Securities and would normally invest at least 80% of assets of the Fidelity Total Bond ETF in Debt Securities, the Manager may invest up to 20% of a Fund's assets in other
According to the Registration Statement, the Funds may invest in securities of other investment companies (other than the short-term bond investment companies described above). In addition, the Funds may invest in other exchange-traded products (“ETPs”)—other than the short-term bond ETFs described above—such as commodity pools, or in other entities that are traded on an exchange.
According to the Registration Statement, the Funds may invest in inverse ETFs (also called “short ETFs” or “bear ETFs”), shares of which are expected to increase in value as the value of the underlying benchmark decreases.
According to the Registration Statement, the Funds also may invest in leveraged and inverse leveraged ETFs, which seek to deliver multiples or inverse multiples of the performance of an index or other benchmark they track and which use derivatives in an effort to amplify the returns of the underlying index or benchmark.
According to the Registration Statement, the Funds may invest in exchange traded notes (“ETNs”), which are a type of senior, unsecured, unsubordinated debt security issued by financial institutions and which combine aspects of both bonds and ETFs. The Funds may invest in leveraged ETNs.
According to the Registration Statement, the Funds may invest in American Depositary Receipts (“ADRs”) as well as other “hybrid” forms of ADRs, including European Depositary Receipts (“EDRs”) and Global Depositary Receipts (“GDRs”), which are certificates evidencing ownership of shares of a foreign issuer.
The Funds may invest in: junior loans, by buying an assignment of all or a portion of the junior loan from a lender or by purchasing a loan participation from a lender or other purchaser of a participation; structured securities;
In addition to the investment-grade Debt Securities described above, Fidelity Investment Grade Bond ETF and Fidelity Limited Term Bond ETF may invest in lower-quality Debt Securities. The Manager may invest up to 10% of the Fidelity Investment Grade Bond ETF's assets in lower-quality Debt Securities. Lower-quality Debt Securities include all types of debt instruments that have poor protection with respect to the payment of interest and repayment of principal, or may be in default.
In addition to the investment grade repurchase agreements described above, Investment Grade Bond ETF and Limited Term Bond ETF may invest in repurchase agreements with repurchase agreement counterparties that do not have an investment-grade rating, if those repurchase agreements are collateralized by U.S. Government securities as well as repurchase agreements collateralized by equity securities, non-investment-grade debt, and all other instruments in which a Fund can perfect a security interest.
The Funds may invest in exchange-listed and non-exchange-listed preferred securities, exchange-listed or non-exchange-listed real estate investment trusts, and restricted securities,
The Manager may make investments in the following types of derivatives: Futures (both long and short positions); U.S. exchange-traded as well as over-the-counter (“OTC”) options (including options on futures and swaps);
The Funds may conduct foreign currency transactions on a spot (
The Funds may engage in transactions with financial institutions that are, or may be considered to be, “affiliated persons” of the Funds under the 1940 Act.
Each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Manager or Sub-Advisers.
Any foreign equity securities in which a Fund may invest would be limited to securities that trade in markets that are members of ISG, which includes all U.S. national securities exchanges and certain foreign exchanges, or that are parties to a comprehensive surveillance sharing agreement with the Exchange.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share of each Fund will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities.
In support of this proposal, the Exchange has made the following representations:
(1) The Shares of each Fund will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) Trading in the Shares will be subject to the existing surveillance procedures administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws, and these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
(4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (d) how information regarding the Portfolio Indicative Value is disseminated; (e) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and continued listing, the Funds will be in compliance with Rule 10A-3 under the Exchange Act,
(6) A Fund may hold up to an aggregate amount of 15% of its net assets (calculated at the time of investment) in assets deemed illiquid by the Adviser, consistent with Commission guidance.
(7) A minimum of 100,000 Shares of each Fund will be outstanding at the commencement of trading on the Exchange.
(8) Each Fund will invest no more than 20% of its total assets in mortgage-backed securities or in other asset-backed securities, provided that this limitation does not apply to U.S. Government securities.
(9) The Funds will invest only in ADRs, EDRs, and GDRs that are traded on an exchange that is a member of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
(10) Not more than 10% of the net assets of a Fund in the aggregate shall consist of futures contracts or exchange-traded options contracts whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
(11) The Funds' investments in foreign currency options will be exchange-listed. This approval order is based on all of the Exchange's representations and description of the Funds, including those set forth above and in the Notice.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment Nos. 1 and 2, is consistent with Section 6(b)(5) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 2 is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment Nos. 1 and 2, prior to the thirtieth day after the date of publication of notice of Amendment No. 2 in the
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 5, 2014, Miami International Securities Exchange LLC (“MIAX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Liquidity Refresh Pause, set forth in MIAX Rule 515(c)(2), provides an opportunity for additional orders or quotes to be received where an incoming order (“initiating order”) exhausts a Market Maker's quote that was all or part of the MIAX best bid or offer (“MBBO”) when MIAX was alone at the national best bid or offer (“NBBO”) and there are unexecuted contracts remaining from the initiating order. Specifically, the Liquidity Refresh Pause is utilized in instances where (a) either the initiating order is a limit order that crosses the NBBO or the initiating order is a market order, and the limit order or market order could only be partially executed; (b) a Market Maker quote was all or part of the MBBO when the MBBO is alone at the NBBO; and (c) the Market Maker quote was exhausted.
The Exchange proposes to amend MIAX Rule 515(c)(2) in order to address the case where, during the Liquidity Refresh Pause, an Away Best Bid or Offer (“ABBO”) on the same side of the market as the initiating order (a “same-side ABBO”) crosses the original NBBO price on the opposite side of the market. The proposed rule change would provide that, in such a situation, the Liquidity Refresh Pause will be terminated early and normal trading will resume. The Exchange states that the proposed change is designed to codify existing functionality during the liquidity refresh pause.
The following examples describe how a new revised same-side ABBO that crosses the original NBBO on the opposite side of the market will terminate the Liquidity Refresh Pause early.
Same Side ABBO Terminates the Liquidity Refresh Pause Early
• Order 1: Buy limit of 1.13 for 20 contacts with a price protection instruction of 3 MPVs.
• NBBO at time of Order 1's arrival = 1.00 (50) x 1.10 (10).
• Order 1 is price protected at 1.13 (which is 1.10 + 3 MPV = 1.13).
• Order 1 trades 10 contracts with PLMM @1.10.
• Liquidity Refresh Pause is triggered because the MBO of 1.10
• New MBBO = 1.10 (10) x 1.12 (10).
• ABB updates to 1.12 for 10 contracts; ABBO = 1.12 (10) x 1.14 (10).
• Liquidity Refresh Pause is terminated early due to the ABB crossing the original NBO of 1.10.
• Because no responses to the Liquidity Refresh Pause were received before it terminated early, Order 1 trades 10 contracts with LMM1 @1.12, after which Order 1 has been fully executed.
• New MBBO: 1.00 (40) x 1.15 (10). New NBBO: 1.12 (10) x 1.14 (10).
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
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”)
OCC proposes to amend its Rules to permit OCC to increase the size of its clearing fund intra-month based upon observed changes in OCC's projected exposure and on an emergency basis. In addition, the proposed change provide [sic] that under certain circumstances OCC will increase a clearing member's required contribution to OCC's clearing fund intra-month.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
OCC is proposing to modify Rule 1001, which concerns the sizing of OCC's clearing fund and the allocation of clearing member contributions thereto. First, by adding Interpretation and Policy .05, Rule 1001 would be revised to permit OCC to increase the size of its clearing fund intra-month based upon observed changes in OCC's projected exposure or on an emergency basis. Second, by adding Interpretation and Policy .06, Rule 1001 would be revised to permit increases to a clearing member's required contribution to the clearing fund at any time, including between regular monthly calculations, under certain circumstances. Rule 1001(b) and 1001(f) would also be revised to clarify certain terminology relating to the calculation of clearing fund contributions, and an Interpretation and Policy would be added to Article VIII, Section 2 of the By-Laws to clarify that this section, which addresses rule changes that increase a clearing member's required clearing fund contributions, does not apply to actions taken under Interpretations and Policies .05 or .06 to Rule 1001. This proposed rule change was also filed as an Advance Notice filing (SR-OCC-2014-804).
The primary purpose of OCC's clearing fund is to provide a high degree of assurance that market integrity will be maintained in the event that one or more clearing members fails to meet its obligations to OCC.
Currently, the size of the clearing fund is adjusted monthly. On each business day OCC calculates its hypothetical exposure, at a confidence level of at least 99%, under simulated default scenarios that include an “idiosyncratic default” of a single clearing member group
The foregoing calculations and the allocations among clearing members are based on the prescribed formulas included in Rules 1001(a) and 1001(b), respectively, as supplemented by Interpretation and Policy .01 to Rule 1001. These formulas were adopted pursuant to a rule change effective April 18, 2013.
In order to mitigate the risks of an underfunding of the clearing fund, the proposed changes to the Rules would provide OCC with the authority to increase the total size of the clearing fund intra-month upon a significant and sustained increase in exposure based on daily projected clearing fund draw calculations, as described above, and on an emergency basis for the protection of OCC or in the public interest. The proposed changes would also provide OCC with the authority to increase a clearing member's required clearing fund contribution under certain circumstances reflecting a change in the clearing member's financial condition or risk profile.
OCC would have the authority to increase the overall size of the clearing fund intra-month in the event that the five-day rolling average of the projected draws against the clearing fund are 150% or more of the size of the clearing fund. This threshold is intended to ensure that intra-month increases in clearing fund size are limited to occasions in which the increase in exposure is significant and prolonged. Based on OCC staff's analysis of historical clearing fund data beginning in July 2011, the use of this 150% threshold would have resulted in only four changes to the clearing fund's size during this period, one of which related to firm-specific changes and three of which related to increased volatility prior to and during the events related to the downgrade of the U.S. Government's credit rating and the ongoing debt crisis of that period. In the event that the 150% threshold is exceeded over a five-day period, OCC's Executive Chairman or President would have the authority to approve an increase in the clearing fund's size. The Risk Committee of OCC's Board would be informed of such officer's determination as soon as practicable. OCC would also provide notification to the SEC and CFTC in the same manner as if an emergency waiver or suspension of OCC's Rules occurred.
The Risk Committee would also be permitted to approve an increase in the clearing fund's size on an emergency basis upon its determination that such action is necessary for the protection of OCC or in the public interest, and OCC would then provide notification to the Board of Directors, SEC and CFTC in the same manner as if an emergency waiver or suspension of OCC's Rules occurred.
Upon an intra-month increase in the clearing fund's size, clearing members would generally be given two business
The proposed rule change would also permit OCC to increase individual clearing members' required clearing fund contributions in three circumstances. The first circumstance exists when a clearing member's required clearing fund contribution exceeds its net capital.
The second circumstance is the merger or consolidation of two or more clearing members, in which case the variable amount of the required clearing fund contribution for the surviving clearing member would be adjusted so that it equals the sum of such amount for the surviving clearing member and the total of such amounts for all other clearing members involved in the transaction. Such adjusted amount would be substituted for the variable amount previously calculated for the surviving clearing member.
The third circumstance is the transfer of positions between clearing members, in which case OCC would be able to adjust the clearing fund contributions of the transferor clearing member and the transferee clearing member after giving effect to the transfer, subject to the agreement of the two clearing members. The amount of such adjustment would affect the variable amount of each clearing member's required clearing fund contribution and, irrespective of the amount or size of the positions transferred, each clearing member would continue to be required to maintain OCC's minimum clearing fund contribution.
OCC is proposing to add an Interpretation and Policy .05 under Rule 1001 to provide for the authority to increase the size of the clearing fund on an intra-month basis. Subparagraph (a) of proposed Interpretation and Policy .05 would authorize OCC's Executive Chairman or President, or the Risk Committee, to increase the clearing fund size as described above (
Proposed Interpretation and Policy .06 under Rule 1001 would provide for the authority to increase individual clearing members' required clearing fund contributions in certain circumstances. Subparagraph (a) would provide for an increase when a clearing member's required clearing fund contribution exceeds its net capital, subparagraph (b) would provide for an increase in the event of a merger or consolidation involving clearing members and subparagraph (c) would provide for an increase in the event of a transfer of positions between clearing members, in each case as described above.
Subparagraph (b) of proposed Interpretation and Policy .05 and subparagraphs (a), (b) and (c) of proposed Interpretation and Policy .06 would provide that if the total size of the clearing fund size or an individual clearing member's required contribution is increased, as applicable, the variable amount would be increased accordingly for each clearing member, and this increase would be effective for all purposes under OCC's By-Laws and Rules, including each clearing member's required contribution in the event the clearing fund is fully depleted in connection with the insolvency of a clearing member.
An example will illustrate the manner in which the total size of the clearing fund and individual clearing members' contributions could be adjusted pursuant to Interpretation and Policy .05 to Rule 1001. The example assumes that OCC's total clearing fund requirement is $1 million divided among five clearing members. Member One has the minimum requirement of $150,000, Member Two has a requirement of $212,500 and the other three comprise the remainder in differing amounts. If OCC determined, based on the most recent five-day rolling average of clearing fund draws, that it should resize the fund to $1.5 million, Member One would maintain the minimum requirement of $150,000 and the other four members would be
Subparagraph (c) of proposed Interpretation and Policy .05 and subparagraph (d) of proposed Interpretation and Policy .06 would provide that as soon as practicable after any increase in the total size of the clearing fund size or an individual clearing member's required contribution, as applicable, OCC would provide notice to the affected clearing members, and such clearing members would be required to satisfy their deficits within two business days of such notice in the case of adjustments pursuant to Interpretation and Policy .05 and one business day in the case of adjustments pursuant to Interpretation and Policy .06. If, however, any deficit would be required to be satisfied on the first, second, third or fourth business day of a calendar month, it may instead be satisfied by the fifth business day of the calendar month. These subparagraphs also set forth that a resulting change in a clearing member's contribution to the clearing fund due to an increase in the clearing fund's size or an individual adjustment will be reflected on one or more reports made available by OCC, but that OCC will not revise the clearing member's Clearing Fund Statement.
Subparagraph (d) of proposed Interpretation and Policy .06 would further specify that OCC may require any deficit resulting from a merger of clearing members or the transfer of positions between clearing members to be satisfied prior to the occurrence of the merger or transfer. Moreover, subparagraph (e) of proposed Interpretation and Policy .06 would clarify that the individual adjustments under subparagraphs (a), (b), and (c) of proposed Interpretation and Policy .06 may result in an adjustment to the total size of the clearing fund.
To enhance the readability of the new Interpretations and Policies added to Rule 1001, the term “fixed amount” would be used to refer to the portion of a clearing member's clearing fund contribution calculated pursuant to clause (x) of Rule 1001(b), and the term “variable amount” would be used to refer to the portion of a clearing member's clearing fund contribution calculated pursuant to clause (y) of Rule 1001(b). Rule 1001(b) and 1001(f) would be amended solely for the purpose of introducing these defined terms.
Article VIII, Section 2(b) of OCC's By-Laws provides, among other things, that if a clearing member's clearing fund contribution is increased as a result of an amendment of the Rules, the increase will not be effective until the clearing member is given five business days' notice of the amendment. OCC proposes to add Interpretation and Policy .01 to Article VIII, Section 2 to clarify that such section shall not apply to increases in the total size of the clearing fund pursuant to Interpretation and Policy .05 of Rule 1001, nor to an increase in an individual clearing member's contribution pursuant to Interpretation and Policy .05 or .06 of Rule 1001.
While the proposed rule change may require clearing members to increase their clearing fund contributions at any time during a month, any such increase in the overall size of the clearing fund would correspond to a material change in OCC's projected exposure and would affect all clearing members proportionally in the same manner as a monthly adjustment, and any such increase in an individual clearing member's required contribution would correspond to a material change in the clearing member's business or financial condition, as well as use of OCC's resources. OCC therefore does not believe that clearing members will have significant problems in complying with the rule change. In addition to the prior communications with clearing members described above, in connection with the filing of this rule change, OCC will inform clearing members of the proposed change via an information memorandum, in order to advise clearing members of the procedures OCC intends to implement in support of the proposed rule change, including notice procedures to advise clearing members of any increases in contribution amounts.
OCC believes the proposed changes to OCC's Rules are consistent with Section 17A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
OCC does not believe that the proposed changes to the Rules would impose any burden on competition.
For the foregoing reasons, OCC believes that the proposed changes are in the public interest, would be consistent with the requirements of the Act applicable to clearing agencies and would not impose a burden on competition because the changes would permit OCC to increase the size of its clearing fund intra-month in response to an increase in OCC's projected exposure, and to provide for adjustments of a clearing member's required clearing fund contribution at any time under specified circumstances reflecting a change in its financial condition or risk profile, thereby promoting the purposes of the Act and Rule 17Ad-22 thereunder as described above.
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-OCC-2014-17. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to establish the NYSE Best Quote & Trades (“NYSE BQT”) data feed. 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 these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to establish the NYSE BQT data feed. The NYSE BQT data feed would provide a unified view of best bid and offer (“BBO”) and
In 2009, the Securities and Exchange Commission (the “Commission”) approved the NYSE Trades data feed and certain fees for it.
NYSE Arca established the NYSE Arca Trades data feed in 2009, and NYSE MKT established the NYSE MKT Trades data feed in 2010.
In 2010, the Commission approved the NYSE BBO data feed and certain fees for it.
In 2010, the Commission also approved the NYSE Arca BBO and NYSE MKT BBO data feeds and associated fees.
In response to customer requests, the Exchange proposes to establish the NYSE BQT data feed, a data feed consisting of certain data elements from six market data feeds—NYSE Trades, NYSE BBO, NYSE Arca Trades, NYSE Arca BBO, NYSE MKT Trades, and NYSE MKT BBO. The Exchange does not currently offer this product. The NYSE BQT data feed would have three channels: One channel for the last sale data (the “last sale channel”); another channel for the BBO data (the “best quotes channel”); and a third channel for consolidated volume data (the “consolidated volume channel”).
The last sale channel provides an aggregation of the same data that is available through NYSE Trades, NYSE Arca Trades, and NYSE MKT Trades.
The best quotes channel provides the NYSE BQT BBO, which is the best quote from among the NYSE BBO, NYSE Arca BBO, and NYSE MKT BBO based on the following criteria, in order:
• Price: the exchange with the highest bid or the lowest offer has overall priority;
• Size: the largest size takes precedence when multiple exchanges submit the same bid and/or offer price; and
• Time: the earliest time takes precedence when multiple exchanges submit the same bid and/or offer price with the same sizes.
For each security, the best quotes channel would only include one best bid and one best offer from among the three exchanges. The NYSE BQT BBO would be marked with a market center ID identifying the exchange from which the BBO originated. For example, if XYZ stock were traded on both NYSE and NYSE Arca, and the highest bid and lowest offer according to the NYSE BBO were 1,000 shares at $10.00 and 1,000 shares at $10.03, respectively, and the highest bid and lowest offer for XYZ stock according to the NYSE Arca BBO were 1,200 shares at $9.99 and 900 shares at $10.02, respectively, then NYSE BQT would generate the best bid for XYZ stock as 1,000 shares at $10.00 on NYSE and the best offer at 900 shares at $10.02 on NYSE Arca.
The consolidated volume channel will carry consolidated volume for all listed equities in a manner consistent with the requirements for redistributing such data as set forth in the securities information processor plans.
NYSE BQT would also provide related data elements, such as trade and security status updates (
The Exchange proposes to offer NYSE BQT through the Exchange's Secure Financial Transaction Infrastructure (“SFTI”) network and market data vendors, as the Exchange does with its other proprietary market data products.
The Exchange believes that NYSE BQT would provide high-quality, comprehensive last sale and BBO data for the Exchange, NYSE Arca, and NYSE MKT in a unified view and respond to subscriber demand for such a product. The Exchange notes that an anticipated end user might use NYSE BQT for purposes of identifying an indicative price of Tape A, B, and C securities through leveraging the depth and breadth of NYSE, NYSE Arca, and NYSE MKT without having to purchase consolidated data and thus it would not be a latency-sensitive product. The Exchange does not anticipate that an end user would, or could, use the NYSE BQT data for purposes of making order-routing or trading decisions. Rather, the Exchange notes that under Rule 603 of Regulation NMS, NYSE BQT could not be substituted for consolidated data in all instances in which consolidated data is used and certain subscribers would still be required to purchase consolidated data for trading and order-routing purposes.
The Exchange proposes to offer the NYSE BQT data feed in a capacity similar to that of a vendor. The Exchange, NYSE Arca, and NYSE MKT are the exclusive distributors of the six BBO and Trades feeds
After creating the NYSE BQT, the Exchange would distribute this data feed through SFTI and market data vendors. The path for distribution by the Exchange of this data would not be faster than a vendor that independently created an NYSE BQT-like product could distribute its own product. As such, the proposed NYSE BQT data feed is a data product that a competing vendor could create and sell without being in a disadvantaged position relative to the Exchange. In recognition that the Exchange is the source of its own market data and is affiliated with NYSE Arca and NYSE MKT, the Exchange represents that the source of the market data it uses to create the proposed NYSE BQT is the same as the source available to other vendors.
With respect to latency, the Exchange, NYSE Arca, and NYSE MKT are located in the same data center in Mahwah, New Jersey. The system creating and supporting the proposed NYSE BQT data feed would need to obtain the six underlying data feeds from these three exchanges before it could aggregate and consolidate information to create NYSE BQT and then distribute it to end users. The Exchange also offers third parties access to its data center through co-location. Accordingly, a competing market data vendor co-located in the Exchange's Mahwah, New Jersey facility offering a similar competing product would similarly need to obtain the six underlying data feeds.
The Exchange has designed the NYSE BQT data feed so that it would not have a competitive advantage over a competing vendor with respect to the speed of access to those six underlying data feeds. Likewise, the NYSE BQT data feed would not have a speed advantage vis-à-vis competing vendors co-located in the data center with respect to access to end user customers, whether those end users are also co-located or not. As such, a market data vendor could perform the aggregation and consolidation function in the Mahwah facility and redistribute a competing product from that location to similarly situated customers on a level playing field with respect to the speed that the Exchange could create and redistribute the NYSE BQT data feed.
With respect to cost, the Exchange will file a separate rule filing to establish the fees for NYSE BQT. To ensure that vendors could compete with the Exchange by creating the same product as NYSE BQT and sell it to their clients, the Exchange would charge its clients for the NYSE BQT feed an amount that represents the cost to a market data vendor to obtain the six underlying data feeds, plus $1,000 per month to reflect the value of the aggregation and consolidation function. The Exchange notes that a competing vendor might engage in a different analysis of assessing the cost of a competing product, which may incorporate passing through fees associated with co-location at the Mahwah, New Jersey data center. However, the incremental co-location costs to a particular vendor might be inconsequential if such vendor is already co-located and is able to allocate its co-location costs over numerous product and customer relationships. The Exchange therefore believes that a competing vendor could create and offer a product similar to the proposed NYSE BQT data feed at a similar cost. For these reasons, the Exchange believes that vendors could readily offer a product similar to NYSE BQT on a competitive basis.
The Exchange will announce the effective date of the proposed rule change in a notice to be published as soon as practicable following approval of the proposed rule change by the Commission. The Exchange anticipates making available the NYSE BQT data feed as soon as practicable after approval of the proposed rule change by the Commission.
As noted above, the Exchange would be acting in the capacity of a vendor with respect to the proposed NYSE BQT data feed. The proposed NYSE BQT data feed is a product that relies on the Exchange's receipt of underlying data, which is available to all market participants, before it can aggregate and consolidate information to create the NYSE BQT; this is a process that a competing vendor could also perform. Accordingly, although the Exchange might be the only distributor of the NYSE BQT data feed initially, it is not an exclusive position to provide a product like the NYSE BQT data feed. Because the Exchange is acting in a vendor capacity, the Exchange does not believe that its proposed NYSE BQT data feed is subject to review under the Act.
Specifically, the Exchange has taken into consideration its affiliated relationship with NYSE Arca and NYSE MKT in its design of the NYSE BQT data feed to assure that similarly situated competing vendors would be able to offer a similar product on the same terms as the Exchange, both from the perspective of latency and cost. As discussed in detail above, the Exchange proposes to begin offering the NYSE BQT data feed voluntarily in response to demand from vendors and subscribers that are interested in receiving BBO and last sale information from the Exchange, NYSE Arca, and NYSE MKT in a unified view. Specifically, portfolio managers, wealth managers, back-office employees, and others are looking for a cost-effective, easy-to-administer, high-quality market data product with the characteristics of the NYSE BQT data feed. The NYSE BQT data feed will help to protect a free and open market by providing vendors and subscribers with additional choices in receiving this type of market data, thus promoting competition and innovation.
The Exchange believes that NYSE BQT will offer an alternative to the use of consolidated data products and proprietary data products such as NASDAQ Basic and NLS Plus in certain circumstances. NASDAQ Basic, which is offered by The NASDAQ Stock Market, Inc. (“NASDAQ”) pursuant to NASDAQ Rule 7047, provides best bid and offer and last sale information for all U.S. exchange-listed securities (including NYSE and its affiliates) based on liquidity within NASDAQ, as well as trades reported to the FINRA/NASDAQ Trade Reporting Facility (“TRF”), including NASDAQ last sale, NASDAQ
NLS Plus is a data product that is offered by NASDAQ OMX Information, LLC, a NASDAQ affiliate that is not a self-regulatory organization (“SRO”); neither NLS Plus nor its pricing was subject to the rule filing process. NLS Plus provides all trade data from NASDAQ, the FINRA/NASDAQ TRF, NASDAQ OMX BX, and NASDAQ OMX PSX, as well as consolidated volume information as part of each trade message.
BATS Global Markets (“BATS”) has announced that it intends to offer a market data product that provides a unified view of the aggregated best bid and offer, last sale, and optional depth information (five levels), including size, for all four equity exchanges operated by BATS.
In addition, the proposal would not permit unfair discrimination because the product will be available to all of the Exchange's customers through SFTI and market data vendors on an equivalent basis. In addition, any customer that wished to continue to be able to purchase one or more of the individual underlying data feeds would be able to do so.
In addition, the Exchange does not believe that the proposal would permit unfair discrimination among customers, brokers, or dealers and thus is consistent with the Act because the Exchange will be offering the product on terms that a competing vendor could offer a competing product. Specifically, the proposed data feed does not represent Exchange core data, but rather a new product that represents an aggregation and consolidation of existing, previously filed market data products of the Exchange, NYSE Arca, and NYSE MKT. As such, a competing vendor could similarly obtain the six underlying data feeds and perform a similar aggregation and consolidation function to create the same data product with the same latency. More specifically, a competing vendor that is co-located in the Exchange's Mahwah, New Jersey data center could obtain the six underlying data feeds from the Exchange, NYSE Arca, and NYSE MKT on the same latency basis as the system that would be performing the aggregation and consolidation of the proposed NYSE BQT data feed and provide the same type of product to its customers with the same latency they could achieve by purchasing the NYSE BQT product from the Exchange. As such, the Exchange would not have any unfair advantage over competing vendors with respect to obtaining data from NYSE Arca and NYSE MKT; in fact, the technology supporting the NYSE BQT data feed would similarly need to obtain the Exchange's data feed as well and even this connection would be on a level playing field with a competing vendor co-located at the data center. In addition, the Exchange would be charging for the proposed NYSE BQT data feed competitively with the price that a competing vendor could assess for a competing product.
In accordance with Section 6(b)(8) of the Act,
With respect to latency, the Exchange, NYSE Arca, and NYSE MKT are located in the same data center in Mahwah, New Jersey. The system creating and supporting the proposed NYSE BQT data feed would need to obtain the six underlying data feeds from these three exchanges before it could aggregate and consolidate information to create NYSE BQT and then distribute it to end users. A competing market data vendor co-located at the Exchange's Mahwah, New Jersey facility offering a similar competing product would similarly need to obtain the six underlying data feeds.
The Exchange has designed the NYSE BQT data feed so that it would not have a competitive advantage over a competing vendor with respect to the speed of access to those six underlying data feeds. Likewise, the NYSE BQT data feed would not have a speed advantage vis-à-vis competing vendors co-located in the data center with respect to access to end user customers, whether those end users are also co-located or not. As such, a market data vendor could perform the aggregation and consolidation function in the Mahwah facility and redistribute a competing product from that location to similarly situated customers on a level-playing field with respect to the speed that the Exchange could create and redistribute the NYSE BQT data feed.
With respect to cost, the Exchange will file a separate rule filing to establish the fees for NYSE BQT. To ensure that vendors could compete with the Exchange by creating the same product as NYSE BQT and sell it to their clients, the Exchange would charge its clients for the NYSE BQT feed an amount that represents the cost to a market data vendor to obtain the six underlying data feeds, plus $1,000 per month to reflect both the value of the aggregation and consolidation function. The Exchange notes that a competing vendor might engage in a different analysis of assessing the cost of a competing product, which may incorporate passing through fees associated with co-location at the Mahwah, New Jersey data center. However, the incremental co-location costs to a particular vendor may be inconsequential if such vendor is already co-located and is able to allocate
The Exchange further believes that NYSE BQT will promote competition among exchanges by offering an alternative to NASDAQ Basic and NLS Plus, which are already offered by NASDAQ. As noted above, seven vendors are already offering and more than 1,000 firms are already subscribing to NASDAQ Basic, including 9 of the 10 largest banks.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Amico Games Corp. because it has not filed any periodic reports since the period ended May 31, 2011.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Andina Group Inc. because it has not filed any periodic reports since the period ended March 31, 2011.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Cougar Oil & Gas Canada Inc. because it has not filed any periodic reports since the period ended December 31, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Encorium Group, Inc. because it has not filed any periodic reports since the period ended December 31, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Waccamaw Bankshares, Inc. because it has not filed any periodic reports since the period ended December 31, 2010.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 6, 2014, through 11:59 p.m. EDT on August 19, 2014.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Datascension, Inc. because it has not filed any periodic reports since the period ended June 30, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Here Enterprises, Inc. because it has not filed any periodic reports since the period ended February 29, 2012.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Metaswarm, Inc. because it has not filed any periodic reports since it filed a Form 10-12G to register its common stock, which included financial statements through the period ended June 30, 2007.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Statmon Technologies Corp. because it has not filed any periodic reports since the period ended December 31, 2010.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 6, 2014, through 11:59 p.m. EDT on August 19, 2014.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Conquest Petroleum Inc. because it has not filed any periodic reports since the period ended September 30, 2011.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Nexaira Wireless Inc. because it has not filed any periodic reports since the period ended July 31, 2011.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 6, 2014, through 11:59 p.m. EDT on August 19, 2014.
By the Commission.
Social Security Administration (SSA).
Notice.
We are giving notice that on August 1, 2014, a new agreement will enter into force that replaces the original U.S.-Swiss Social Security agreement that has been in effect since November 1, 1980. The new agreement, which was signed on December 3, 2012, was concluded pursuant to section 233 of the Social Security Act.
The new agreement updates and clarifies several provisions in the original U.S.-Swiss Social Security agreement. The primary purpose, however, is to correct an anomalous situation, caused by a change in Swiss law, in which the original agreement allowed U.S. nationals to receive certain disability benefits from Switzerland on more favorable terms than Swiss nationals. Additionally, the new agreement provides that under certain conditions less restrictive than those of the original agreement. U.S. nationals may qualify for Swiss flat-rate, needs-based benefits. The new agreement also introduces new and enhanced provisions for the protection and integrity of personal data transmitted under the agreement.
Individuals who wish to obtain copies of the new agreement or want general information about its provisions may write to the Social Security Administration, Office of International Programs, Post Office Box 17741, Baltimore, Maryland 21235-7741. The Social Security Web site at
Based upon a review of the Administrative Record assembled in this matter pursuant to Section 219(a)(4)(C) and (b) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C), (b)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, the Secretary of State concludes that the circumstances that were the basis for the 2008 decision to maintain the designation of the aforementioned organization as a foreign terrorist organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not
Therefore, the Secretary of State hereby determines that the designation of the aforementioned organization as a foreign terrorist organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained. In addition, effective upon the date of publication in the
Based upon a review of the Administrative Record assembled in this matter pursuant to Executive Order 13224 and in consultation with the Attorney General and the Secretary of the Treasury, the Secretary of State concludes that there is a sufficient factual basis to find that Harakat ul-Mujahidin, also known under the aliases listed above, uses or has used additional aliases, namely, Ansar ul-Ummah.
Therefore, the Secretary of State hereby amends the designation of Harakat ul-Mujahidin as a Specially Designated Global Terrorist entity, pursuant to Executive Order 13224, to include the following new aliases and other possible transliterations thereof:
State Justice Institute.
Notice of Meeting.
The SJI Board of Directors will be meeting on Friday, September 5, 2014 at 1:00 p.m. The meeting will be held at the Supreme Court of Arkansas in Little Rock, Arkansas. The purpose of this meeting is to consider grant applications for the 4th quarter of FY 2014, and other business. All portions of this meeting are open to the public.
Supreme Court of Arkansas, 625 Marshall Street, Little Rock, Arkansas, 72201.
Jonathan Mattiello, Executive Director, State Justice Institute, 11951 Freedom Drive, Suite 1020, Reston, VA 20190, 571-313-8843,
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before August 28, 2014.
You may send comments identified by Docket Number FAA-2014-0481 using any of the following methods:
•
•
•
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Jake Troutman, (202) 267-9521, 800 Independence Avenue SW., Washington, DC, 20951.
This notice is published pursuant to 14 CFR 11.85.
Section of 14 CFR 45.23(b), 61.113(a) and (b), 91.7(a), 91.9(b)(2), 91.103(b), 91.109, 91.119, 91.121, 91.151(a), 91.203(a) and (b), 91.405(a), 91.407(a)(1), 91.409(a)(2), and 91.417(a) and (b).
Description of Relief Sought: The petitioner is seeking an exemption to commercially operate his small ultra light weight UAS for academic community awareness, real estate operations, enhancement of real estate listing videos for homeowners that cannot afford expensive manned aircraft for the same purpose, and to benefit/
Maritime Administration, DOT.
Notice of open season for enrollment in the VISA program.
The Maritime Administration (MARAD) announces that the open season for Fiscal Year 2015 applications for participation in the Voluntary Intermodal Sealift Agreement (VISA) program will run for 30 days beginning today and ending September 8, 2014. The purpose of this notice is to invite interested, qualified U.S.-flag vessel operators that are not currently enrolled in the VISA program to apply. This is the only planned enrollment period for carriers to join the VISA program and derive benefits for Department of Defense (DOD) peacetime contracts initiated during the period from October 1, 2014, through September 30, 2015.
Any U.S.-flag vessel operator organized under the laws of a state of the United States, or the District of Columbia, who is able and willing to commit militarily useful sealift assets and assume the related consequential risks of commercial disruption, may be eligible to participate in the VISA program.
The mission of VISA is to provide commercial sealift and intermodal shipping services and systems, including vessels, vessel space, intermodal systems and equipment, terminal facilities, and related management services, to the Department of Defense (DOD), as necessary, to meet national defense contingency requirements or national emergencies. Carriers enrolled in the VISA program provide DOD with assured access to such services during contingencies. In return for their VISA commitment, DOD gives VISA participants priority for peacetime cargos.
VISA Program applications must be received on or before September 8, 2014.
Submit applications and questions related to this notice to Jerome D. Davis, Director, Office of Sealift Support, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone (202) 366-0688; Fax (202) 366-5904.
Jerome D. Davis, Director, Office of Sealift Support, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone (202) 366-0688; Fax (202) 366-5904, or visit
The VISA program was established pursuant to Section 708 of the Defense Production Act of 1950, as amended (DPA). The VISA program was created to provide for voluntary agreements for emergency preparedness programs. Pursuant to the DPA, voluntary agreements for preparedness programs, including the VISA program expire five (5) years after the date they became effective.
The VISA program is open to U.S.-flag vessel operators of oceangoing militarily useful vessels, to include tugs and barges. An operator is defined as an owner or bareboat charterer of a vessel. Tug enrollment alone does not satisfy VISA eligibility. Operators include vessel owners and bareboat charter operators if satisfactory signed agreements are in place committing the assets of the owner to VISA. Voyage and space charterers are not considered U.S.-flag vessel operators for purposes of VISA eligibility.
The VISA program provides for the staged, time-phased availability of participants' shipping services/systems through pre-negotiated contracts between the Government and participants. Such arrangements are jointly planned with the MARAD, USTRANSCOM, and participants in peacetime to allow effective and best valued use of commercial sealift capacity, provide DOD assured contingency access, and to minimize commercial disruption.
There are three time-phased stages in the event of VISA activation. VISA Stages I and II provide for pre-negotiated contracts between DOD and participants to provide sealift capacity to meet all projected DOD contingency requirements. These contracts are executed in accordance with approved DOD contracting methodologies. VISA Stage III provides for additional capacity to DOD when Stages I and II commitments or volunteered capacity are insufficient to meet contingency requirements, and adequate shipping services from non-participants are not available through established DOD contracting practices or U.S. Government treaty agreements.
The only exception to this open season period for VISA enrollment will be for a non-VISA carrier that reflags a vessel into U.S. registry. That carrier may submit an application to participate in the VISA program at any time upon completion of reflagging.
In return for their VISA commitment, DOD awards peacetime cargo contracts to VISA participants on a priority basis. Award of DOD cargoes to meet DOD peacetime and contingency requirements is made on the basis of the following priorities: U.S.-flag vessel capacity operated by VISA participants and U.S.-flag Vessel Sharing Agreement (VSA) capacity held by VISA participants; U.S.-flag vessel capacity operated by non-participants; Combination U.S.-flag/foreign-flag vessel capacity operated by VISA participants, and combination U.S.-flag/foreign-flag VSA capacity held by VISA participants; Combination U.S.-flag/foreign-flag vessel capacity operated by non-participants; U.S.-owned or operated foreign-flag vessel capacity and VSA capacity held by VISA participants; U.S.-owned or operated foreign-flag vessel capacity and VSA capacity held by non-participants; and Foreign-owned or operated foreign-flag vessel capacity of non-participants.
Applicants must provide satisfactory evidence that the vessels being committed to the VISA program are operational and are intended to be operated by the applicant in the carriage of commercial or government preference cargoes. Operator is defined as an ocean common carrier or contract carrier that owns, controls or manages vessels by which ocean transportation is provided. While vessel brokers, freight forwarders, and agents play an important role as a conduit to locate and secure appropriate vessels for the carriage of DOD cargo, they are not eligible to participate in the VISA program due to lack of requisite vessel ownership or operation.
Any U.S.-flag vessel operator desiring to receive priority consideration for DOD peacetime contracts must commit no less than 50 percent of its total U.S.-flag militarily useful capacity in Stage III of the VISA program. Participants operating vessels in international trade may receive top tier consideration in the award of DOD peacetime contracts by
In order to protect a U.S.-flag vessel operator's market share during contingency activation, VISA allows participants to join with other vessel operators in Carrier Coordination Agreements (CCAs) to satisfy commercial or DOD requirements. VISA provides a defense against antitrust laws in accordance with the DPA. CCAs must be submitted to the MARAD for coordination with the Department of Justice for approval, before they can be utilized.
If VISA applicants have the capability to track their vessels, they must include the tracking system used in their VISA application. Such applicants are required to provide MARAD access to their vessel tracking systems upon approval of their VISA application. If VISA applicants do not have a tracking system, they must indicate this in their VISA application. The VISA program requires enrolled ships to comply with 46 CFR Part 307, Establishment of Mandatory Position Reporting System for Vessels.
In addition to receiving priority in the award of DOD peacetime cargo, a participant will receive compensation during contingency activation for that capacity activated under Stage I, II and III. The amount of compensation will depend on the Stage at which capacity is activated. During enrollment, each participant must select a rate methodology for compensation. The compensation methodology selection will be completed with USTRANSCOM, resulting in prices in contingency contracts between USTRANSCOM and the participant.
All VISA applicants accepted for VISA participation, not having a Facility Security Clearance (FCL), will be required to pursue the clearance process with the Defense Security Service (DSS). If the accepted applicant does not have a clearance, MARAD will initiate the clearance process with DSS. Participants must have a FCL and individual security clearances, at a minimum of SECRET level, for key personnel in order for them to participate in the VISA Joint Planning Advisory Group (JPAG) meetings and to meet VISA contingency contract obligations. One of the objectives of the JPAG is to provide the USTRANSCOM, MARAD and VISA participants a planning forum to analyze DOD contingency sealift/intermodal service and resource requirements against industry commitments. JPAG meetings are often SECRET classified sessions. Eligibility for VISA participation will be terminated if an applicant is rejected for a facility clearance or if it fails to progress in a timely manner in the clearance process.
New applicants may apply to participate by obtaining a VISA application package (Form MA-1020 (OMB Approval No. 2133-0532)) from the Director, Office of Sealift Support. Form MA-1020 includes instructions for completing and submitting the application, blank VISA Application forms and a request for information regarding the operations and U.S. citizenship of the applicant company. A copy of the VISA document as published in the
New VISA applicants are required to submit their applications for the VISA program as described in this Notice no later than 30 days after the date of publication of this
Approved VISA participants will be responsible for ensuring that information submitted with their application remains up to date beyond the approval process. Any changes to VISA commitments must be reported to MARAD and USTRANSCOM not later than seven days prior to the change. If charter agreements are due to expire, participants must provide MARAD with charters that extend the charter duration for another 12 months or longer.
Once MARAD has reviewed the application and determined VISA eligibility, MARAD will sign the VISA application document which completes the eligibility phase of the VISA enrollment process.
After VISA eligibility is approved by MARAD, approved applicants are required to execute a VISA contingency contract with USTRANSCOM. The USTRANSCOM VISA contract will specify the following: Participant's Stage III commitment, and appropriate Stage I and/or II commitments for the period October 1, 2014 through September 30, 2015; Drytime Contingency terms and conditions; and Liner Contingency terms and conditions, if applicable.
Execution of the USTRANSCOM VISA contract completes the enrollment process and establishes the approved applicant as a VISA Participant. The Maritime Administration reserves the right to revalidate all eligibility requirements without notice. USTRANSCOM reserves the right to revalidate eligibility for VISA priority for DOD business at any time without notice.
49 CFR Sections 1.92 and 1.93
By Order of the Maritime Administrator.
Electronic applications must be received by 5:00 p.m. ET on October 1, 2014. Applications sent by mail, facsimile or other form will not be accepted. Please note the Community Development Financial Institutions Fund (CDFI Fund) will only accept applications and attachments (i.e., the CDE's authorized representative signature page, the Controlling Entity's representative signature page, investor letters and organizational charts) in electronic form (see Section IV.D. of this NOAA for more details). Applications must meet all eligibility and other requirements and deadlines, as applicable, set forth in this NOAA. NMTC allocation Applicants that are not yet certified as Community Development Entities (CDEs) must submit an application for CDE certification that is postmarked on or before August 22, 2014 (see Section III of this NOAA for more details).
In this NOAA, the CDFI Fund specifically addresses how an entity may apply to receive an allocation of NMTCs, the competitive procedure through which NMTC allocations will be made, and the actions that will be taken to ensure that proper allocations are made to appropriate entities.
1.
2.
B.
A.
B.
C.
A.
1.
The CDFI Fund will not provide NMTC allocation authority to Applicants that are not certified as CDEs or to entities that are certified as Subsidiary CDEs.
If an Applicant that has already been certified as a CDE wishes to change its designated CDE service area, it must submit its request for such change to the CDFI Fund, and the request must be received by the CDFI Fund by 5:00 p.m. ET on August 22, 2014. The CDE service area change request must be sent from the Applicant's authorized representative and include the applicable CDE control number, the revised service area designation, and an updated accountability chart that reflects representation from Low-Income Communities in the revised service area. The service area change request must be sent by email to
2.
(a)
An Allocatee in the CY 2009 allocation round of the NMTC Program is not eligible to receive a NMTC allocation pursuant to this NOAA unless the Allocatee is able to affirmatively demonstrate that, as of 11:59 p.m. ET on January 30, 2015, it has finalized at least 95 percent of its QEIs relating to its CY 2009 NMTC allocation.
An Allocatee in the CY 2010 allocation round of the NMTC Program is not eligible to receive a NMTC allocation pursuant to this NOAA unless the Allocatee is able to affirmatively demonstrate that, as of 11:59 p.m. ET on January 30, 2015, it has: (i) Finalized at least 80 percent of its QEIs relating to its CY 2010 NMTC allocation; or (ii) it has finalized at least 70 percent of its QEIs and that at least 100 percent of its total CY 2010 NMTC allocation has been finalized, or has been committed by its investors.
An Allocatee in the CY 2011 allocation round of the NMTC Program is not eligible to receive a NMTC allocation pursuant to this NOAA unless the Allocatee is able to affirmatively demonstrate that, as of 11:59 p.m. ET on January 30, 2015, it has: (i) Finalized at least 70 percent of its QEIs relating to its CY 2011 NMTC allocation; or (ii) it has finalized at least 60 percent of its QEIs and that at least 80 percent of its total CY 2011 NMTC allocation has been finalized, or has been committed by its investors.
An Allocatee (with the exception of a Rural CDE Allocatee) in the CY 2012 allocation round of the NMTC Program is not eligible to receive a NMTC allocation pursuant to this NOAA unless the Allocatee is able to affirmatively demonstrate that, as of 11:59 p.m. ET on January 30, 2015, it has: (i) Finalized at least 50 percent of its QEIs relating to its CY 2012 NMTC allocation; or (ii) it has finalized at least 40 percent of its QEIs and that at least 60 percent of its total CY 2012 NMTC allocation has been finalized, or has been committed by its investors. A prior Rural CDE Allocatee in the CY 2012 is not eligible to receive a NMTC allocation pursuant to this NOAA unless the Allocatee can demonstrate that, as of 11:59 p.m. ET on January 30, 2015, it has finalized at least 30 percent of its CY 2012 NMTC Allocation.
An Allocatee (with the exception of a Rural CDE Allocatee) in the CY 2013 allocation round of the NMTC Program is not eligible to receive a NMTC allocation pursuant to this NOAA unless the Allocatee is able to affirmatively demonstrate that, as of 11:59 p.m. ET on January 30, 2015, it has: (i) Finalized at least 30 percent of its QEIs relating to its CY 2013 NMTC allocation; or (ii) finalized at least 20 percent of its QEIs and that at least 50 percent of its total CY 2013 NMTC allocation has been finalized, or has been committed by its investors. A Rural CDE is not required to meet the above QEI issuance and commitment thresholds with regard to its CY 2013 NMTC allocation award.
In addition to the requirements described above, an entity is not eligible to receive a NMTC allocation pursuant to this NOAA if an Affiliate of the Applicant is a prior Allocatee and has not met the requirements for the issuance and/or commitment of QEIs as set forth above for the Allocatees in the prior allocation rounds of the NMTC Program.
Notwithstanding the above, if an Applicant has received multiple NMTC allocation awards between CY 2009 and CY 2013, the Applicant shall be deemed to be eligible to apply for a NMTC allocation pursuant to this NOAA if the Applicant is able to affirmatively demonstrate that, as of 11:59 p.m. ET on January 30, 2015, it has finalized at least 90 percent of its QEIs relating to its cumulative allocation amounts from these prior NMTC Program rounds. Rural CDEs that received allocations under the CY 2012 allocation round may choose to exclude such allocations from this cumulative calculation, provided that the Allocatee has finalized at least 20 percent of its QEIs relating to its CY 2012 allocation. Rural CDEs that received allocations under the CY 2013 allocation round may choose to exclude such allocation from this cumulative calculation.
For purposes of this section of the NOAA, the CDFI Fund will only recognize as “finalized” those QEIs that have been properly reported in the CDFI Fund's Allocation Tracking System (ATS) by the deadlines specified above. Allocatees and their Subsidiary Allocatees, if any, are advised to access ATS to record each QEI that they issue to an investor in exchange for funds in-hand. For purposes of this section of the NOAA, “committed” QEIs are only those Equity Investments that are evidenced by a written, signed document in which an investor: (i) Commits to make a QEI in the Allocatee in a specified amount and on specified terms; (ii) has made an initial disbursement of the investment proceeds to the Allocatee, and such initial disbursement has been recorded in ATS as a QEI; (iii) commits to disburse the remaining investment proceeds to the Allocatee based on specified amounts and payment dates; and (iv) commits to make the final disbursement to the Allocatee no later than January 30, 2017.
The Applicant will be required, upon notification from the CDFI Fund, to submit adequate documentation to substantiate the required issuances of and commitments for QEIs.
Applicants should be aware that these QEI issuance requirements represent the minimum threshold requirements that must be met in order to submit an application for assistance under this NOAA. As stated in Section V.B.2 of this NOAA, the CDFI Fund reserves the right to reject an application and/or adjust award amounts as appropriate based on information obtained during the review process—including an Applicant's track record of raising QEIs and/or deploying its Qualified Low
Prior Allocatees that require any action by the CDFI Fund (i.e., certifying a subsidiary entity as a CDE; adding a subsidiary CDE to an Allocation Agreement; etc.) in order to meet the QEI issuance requirements above must submit their Certification Application for subsidiary CDEs by no later than October 1, 2014 and Allocation Agreement Amendment requests by no later than November 1, 2014 in order to guarantee that the CDFI Fund completes all necessary approvals prior to January 30, 2015. Applicants for certification may obtain a CDE certification application through the CDFI Fund's Web site at
(b)
Notwithstanding the above, any Applicant or Affiliate that is in default under Section 3.2 of its previously executed Allocation Agreement is deemed ineligible under this NOAA if: (i) The CDFI Fund has made a determination that such Applicant is in default under Section 3.2 of a previously executed Allocation Agreement and (ii) the CDFI Fund has provided written notification of such determination to the Applicant. Moreover, any Applicant that is otherwise eligible as of the application deadline must continue to be compliant with Section 3.2 of its Allocation Agreement(s) after the application deadline, in order for the CDFI Fund to continue evaluating its application. If an Applicant fails to do such, the CDFI Fund will no longer deem the Applicant eligible.
(c)
Further, the CDFI Fund will not consider an application submitted by an Applicant for which there is an Affiliate that is a prior awardee or Allocatee under any CDFI Fund Program if, as of the application deadline of this NOAA: (i) The CDFI Fund has made a determination that such Affiliate is in default of a previously executed assistance, allocation, or award agreement; (ii) the CDFI Fund has provided written notification of such determination to the Affiliate; and (iii) the application deadline of the NOAA is within a period of time specified in a notification to the prior CDFI Fund awardee or Allocatee for which any new application from the Affiliate to the CDFI Fund for an award, allocation, or assistance is prohibited.
(d)
For purposes of the calculation of undisbursed award funds for the BEA Program, only awards made to the Applicant (and any Affiliates) three to five calendar years prior to the end of the calendar year of the application deadline of this NOAA are included (“includable BEA awards”). Thus, for purposes of this NOAA, undisbursed BEA Program award funds are the amount of FYs 2009, 2010, 2011 awards that remain undisbursed as of the application deadline of this NOAA.
For purposes of the calculation of undisbursed award funds for the CDFI Program and the NI, only awards made to the Applicant (and any entity that Controls the Applicant, is Controlled by the Applicant or shares common management officials with the Applicant, as determined by the CDFI Fund) two to five calendar years prior to the end of the calendar year of the application deadline of this NOAA are included (“includable CDFI/NI awards”). Thus, for purposes of this NOAA, undisbursed CDFI Program and NI awards are the amount of FYs 2009, 2010, 2011 and 2012 awards that remain undisbursed as of the application deadline of this NOAA.
To calculate total includable BEA/CDFI/NI awards: Amounts that are undisbursed as of the application deadline of this NOAA cannot exceed five percent (5%) of the total includable awards. Please refer to an example of this calculation in the Round Allocation Application Q&A document, available on the CDFI Fund's Web site.
The “undisbursed award funds” calculation does not include: (i) NMTC allocation authority; (ii) any award funds for which the CDFI Fund received a full and complete disbursement request from the awardee by the applicable application deadline of this NOAA; (iii) any award funds for an award that has been terminated, in writing, by the CDFI Fund or de-obligated by the CDFI Fund; or (iv) any award funds for an award that does not have a fully executed assistance or award agreement. The CDFI Fund strongly encourages Applicants requesting disbursements of “undisbursed funds” from prior awards to provide the CDFI Fund with a
(e)
The CDFI Fund will respond to Applicants' reporting, compliance or disbursement questions between the hours of 9:00 a.m. and 5:00 p.m. ET, starting the date of publication of this NOAA through September 29, 2014 (two days before the application deadline). The CDFI Fund will not respond to Applicants' reporting, compliance, CDE certification, or disbursement phone calls or email inquiries that are received after 5:00 p.m. ET on September 29, 2014 until after the funding application deadline of October 1, 2014.
3.
4.
An Applicant wishing to transfer all or a portion of its NMTC allocation to a Subsidiary is not required to create the Subsidiary prior to submitting a NMTC allocation application to the CDFI Fund. However, the Subsidiary entities must be certified as CDEs by the CDFI Fund, and enjoined as parties to the Allocation Agreement at closing or by amendment to the Allocation Agreement after closing. Before the NMTC allocation transfer may occur it must be pre-approved by the CDFI Fund, in its sole discretion.
The CDFI Fund strongly encourages a non-profit Applicant to submit a CDE certification application to the CDFI Fund on behalf of at least one Subsidiary within 60 days after the non-profit Applicant receives the Notice of Allocation (NOA) from the CDFI Fund, as such Subsidiary must be certified as a CDE prior to entering into an Allocation Agreement with the CDFI Fund. A non-profit Applicant that does not already have a certified for-profit Subsidiary and that fails to submit a certification application for one or more for-profit Subsidiaries within 60 days of the date of the NOA from the CDFI Fund is subject to the CDFI Fund rescinding the award.
5.
For purposes of this NOAA, in addition to assessing whether Applicants meet the definition of the term “Affiliate” found in the allocation application, the CDFI Fund will consider: (i) Whether the activities described in applications submitted by separate entities are, or will be, operated and/or managed as a common enterprise that, in fact or effect, may be viewed as a single entity; (ii) whether the applications submitted by separate entities contain significant narrative, textual or other similarities, and (iii) whether the business strategies and/or activities described in applications submitted by separate entities are so closely related, in fact or effect, they may be viewed as substantially identical applications. In such cases, the CDFI Fund reserves the right either to reject all applications received from all such entities; to select a single application as the only one that will be considered for an allocation; and, in the event that an Application is selected to receive an allocation award, to deem certain activities ineligible. These requirements shall apply to all Applicants, including those that are Affiliated with governmental entities.
(b) Furthermore, an Applicant that receives an allocation in this Allocation Round (or its Subsidiary transferee) may not become an Affiliate of or member of a common enterprise (as defined above) with another Applicant that receives an allocation in this Allocation Round (or its Subsidiary transferee) at any time after the submission of an allocation application under this NOAA. This prohibition, however, generally does not apply to entities that are commonly controlled solely because of common ownership by QEI investors. This requirement will also be a term and condition of the Allocation Agreement (see Section VI.B of this NOAA and additional application guidance materials on the CDFI Fund's Web site
6.
7.
A.
B.
An Applicant may not submit more than one application in response to this NOAA. In addition, as stated in Section III.A.4 of this NOAA, an Applicant and its Affiliates must collectively submit only one allocation application; an Applicant and its Affiliates may not submit separate allocation applications except as outlined above. Once an application is submitted, an Applicant will not be allowed to change any element of its application.
C.
1.
D.
1.
(a)
(b)
E.
F.
G.
There are two parts to the substantive review process for each allocation application: Phase 1 and Phase 2. In Phase 1, the CDFI Fund will evaluate each application, assigning points and numeric scores according to the criteria described below. In Phase 2, the CDFI Fund will rank Applicants in accordance with the procedures set forth below.
A.
1.
Under the Business Strategy criterion, an Applicant will generally score well to the extent that it will deploy debt or investment capital in products or services which are flexible or non-traditional in form and on better terms than available in the marketplace. An Applicant will also score well to the extent that, among other things, it: (i) Has a track record of successfully deploying products and services similar to those it intends to provide with the proceeds of QEIs; (ii) has identified, or has a process for identifying, potential transactions; (iii) demonstrates a likelihood of issuing QEIs and making the related QLICIs in a time period that is significantly shorter than the 5-year period permitted under IRC § 45D(b)(1); (iv) in the case of an Applicant proposing to purchase loans from CDEs, the Applicant will require the CDE selling such loans to re-invest the proceeds of the loan sale to provide additional products and services to Low-Income Communities.
(b)
2.
3.
An Applicant will be generally evaluated more favorably under this section to the extent that its management team or other essential personnel have experience in: (a) Deploying capital or technical assistance in Low-Income Communities, particularly those likely to be served by the Applicant with the proceeds of QEIs; (b) asset and risk management; and (c) fulfilling government compliance requirements, particularly tax credit program compliance. An Applicant will also be evaluated favorably to the extent it demonstrates strong financial health and a high likelihood of remaining a going-concern; has policies and systems in place to ensure ongoing compliance with NMTC Program requirements; has Low-Income Community representatives in the Governing Board and/or Advisory Board that play an active role in designing or implementing its investment criteria and/or decisions; and, if it is a Federally-insured financial institution, its most recent Community Reinvestment Act (CRA) rating was “outstanding.”
4.
An Applicant be evaluated more favorably under this section to the extent that: (a) It or its Controlling Entity is a prior Allocatee and has a superior track record in the past five years of raising Qualified Equity Investments or it has secured investor commitments, or has a reasonable strategy for obtaining such commitments; (b) its request for allocations is commensurate with both the level of QEIs it is likely to raise and its expected investment strategy to deploy funds raised with NMTCs; (c) it generally demonstrates that the economic benefits of the tax credit will be passed through to a QALICB; (d) it is likely to secure capital to finance its cost of operations consistent with the Applicant's overall business strategy and timeline for making investments; and (e) it intends to invest the proceeds from the aggregate amount of its QEIs at a level that exceeds the requirements of IRC § 45D(b)(1)(B) and the IRS regulations. In the case of an Applicant proposing to raise investor funds from organizations that also will identify or originate transactions for the Applicant or from Affiliated entities, said Applicant will be evaluated more favorably to the extent that it will offer products with more favorable rates or terms than those currently offered by its investor(s) or Affiliated entities and/or will target its activities to areas of greater economic distress than those currently targeted by the investor or Affiliated entities.
B.
1.
2.
3.
C.
Applicants that meet the minimum scoring thresholds will be advanced to Phase 2 review and will be provided with “preliminary” awards, in descending order of Final Rank Score, until the available allocation authority is fulfilled. Once these “preliminary” award amounts are determined, the CDFI Fund will then analyze the Allocatee pool to determine whether the two Non-Metropolitan proportionality objectives have been met.
The CDFI Fund will first examine the “preliminary” awards and Allocatees to determine whether the percentage of Allocatees that are Rural CDEs is, at a minimum, equal to the percentage of Applicants in the Phase 2 review pool that are Rural CDEs. If this objective is not achieved, the CDFI Fund will provide awards to additional Rural CDEs from the Phase 2 pool, in descending order of their Final Rank Score, until the appropriate percentage balance is achieved. In order to accommodate the additional Allocatees within the available allocation limitations, a formula reduction will be applied uniformly to the allocation amount for all Allocatees in the pool.
The CDFI Fund will then determine whether the pool of Allocatees will, in the aggregate, invest at least 20 percent of their QLICIs (as measured by dollar amount) in Non-Metropolitan counties. The CDFI Fund will first apply the “minimum” percentage of QLICIs that Allocatees indicated in their applications would be targeted to Non-Metropolitan areas to the total allocation award amount of each Allocatee (less whatever percentage the Allocatee indicated would be retained for non-QLICI activities), and total these figures for all Allocatees. If this aggregate total is greater than or equal to 20 percent of the QLICIs to be made by the Allocatees, then the pool is considered balanced and the CDFI Fund will proceed with the allocation process. However, if the aggregate total is less than 20 percent of the QLICIs to be made by the Allocatees, the CDFI Fund will consider requiring any or all of the Allocatees to direct up to the “maximum” percentage of QLICIs that the Allocatees indicated would be targeted to Non-Metropolitan counties, taking into consideration their track record and ability to deploy dollars in Non-Metropolitan counties. If the CDFI Fund cannot meet the goal of 20 percent of QLICIs in Non-Metropolitan counties by requiring any or all Allocatees to commit up to the maximum percentage of QLICIs that they indicated would be targeted to Non-Metropolitan counties, the CDFI Fund may add additional Rural CDEs (in descending order of final rank score) to the Allocatee pool. In order to accommodate any additional Allocatees within the allocation limitations, a formula reduction will be applied as uniformly as possible, to the allocation amount for all Allocatees in the pool that have not committed to investing a minimum of 20 percent of their QLICIs in Non-Metropolitan counties.
D.
E.
The CDFI Fund reserves the right to reject any NMTC allocation application in the case of a prior CDFI Fund Allocatee, if such Applicant has failed to use its prior NMTC allocation(s) in a manner that is generally consistent with the business strategy (including, but not limited to, the proposed product offerings, QALICB type, and markets served) set forth in the allocation application(s) related to such prior allocation(s). The CDFI Fund also reserves the right to reject any NMTC allocation application in the case of an Affiliate of the Applicant that is a prior CDFI Fund Allocatee and has failed to use its prior NMTC allocation(s) in a manner that is generally consistent with the business strategy set forth in the allocation application(s) related to such prior allocation(s).
The CDFI Fund reserves the right to reject an NMTC allocation application if information (including administrative errors or omission of information) comes to the attention of the CDFI Fund that adversely affects an Applicant's eligibility for an award, adversely affects the CDFI Fund's evaluation or scoring of an application, adversely affects the CDFI Fund's prior determinations of CDE certification, or indicates fraud or mismanagement on the part of an Applicant or the Controlling Entity, if such fraud or mismanagement by the Controlling Entity would hinder the Applicant's ability to perform under the Allocation Agreement. If the CDFI Fund determines that any portion of the application is incorrect in any material respect, the CDFI Fund reserves the right, in its sole discretion, to reject the application.
As a part of the substantive review process, the CDFI Fund may permit the Allocation Recommendation Panel member(s) to request information from Applicants for the sole purpose of obtaining, clarifying or confirming application information or omission of information. In no event shall such contact be construed to permit an Applicant to change any element of its application. At this point in the process, an Applicant may be required to submit additional information about its application in order to assist the CDFI Fund with its final evaluation process. Such requests must be responded to within the time parameters set by the CDFI Fund. The selecting official(s) will make a final allocation determination based on an Applicant's file, including, without limitation, eligibility under IRC§ 45D, the reviewers' scores and the amount of allocation authority available. In the case of Applicants (or the Controlling Entity, or Affiliates) that are regulated or receives oversight by the
The CDFI Fund reserves the right to conduct additional due diligence, as determined reasonable and appropriate by the CDFI Fund, in its sole discretion, related to the Applicant, Affiliates, the Applicant's Controlling Entity and the officers, directors, owners, partners and key employees of each.
Each Applicant will be informed of the CDFI Fund's award decision through an electronic notification whether selected for an allocation or not selected for an allocation, which may be for reasons of application incompleteness, ineligibility or substantive issues. All Applicants that are not selected for an allocation based on substantive issues will likely be given the opportunity to obtain feedback on their applications. This feedback will be provided in a format and within a timeframe to be determined by the CDFI Fund, based on available resources.
The CDFI Fund further reserves the right to change its eligibility and evaluation criteria and procedures, if the CDFI Fund deems it appropriate. If said changes materially affect the CDFI Fund's award decisions, the CDFI Fund will provide information regarding the changes through the CDFI Fund's Web site.
There is no right to appeal the CDFI Fund's NMTC allocation decisions. The CDFI Fund's NMTC allocation decisions are final.
1.
2.
3.
B.
In addition to entering into an Allocation Agreement, each Applicant selected to receive a NMTC allocation must furnish to the CDFI Fund an opinion from its legal counsel or a similar certification, the content of which will be further specified in the Allocation Agreement, to include, among other matters, an opinion that an Applicant (and its Subsidiary transferees, if any): (i) Is duly formed and in good standing in the jurisdiction in which it was formed and the jurisdiction(s) in which it operates; (ii) has the authority to enter into the Allocation Agreement and undertake the activities that are specified therein; (iii) has no pending or threatened litigation that would materially affect its ability to enter into and carry out the activities specified in the Allocation Agreement; and (iv) is not in default of its articles of incorporation, bylaws or other organizational documents, or any agreements with the Federal government.
If an Allocatee identifies Subsidiary transferees, the CDFI Fund reserves the right to require an Allocatee to provide supporting documentation evidencing that it Controls such entities prior to entering into an Allocation Agreement with the Allocatee and its Subsidiary transferees. The CDFI Fund reserves the right, in its sole discretion, to rescind its allocation award if the Allocatee fails to return the Allocation Agreement, signed by the authorized representative of the Allocatee, and/or provide the CDFI Fund with any other requested documentation, including an approved legal opinion, within the deadlines set by the CDFI Fund.
C.
D.
The CDFI Fund reserves the right, in its sole discretion, to modify these reporting requirements if it determines it to be appropriate and necessary; however, such reporting requirements will be modified only after due notice to Allocatees.
The CDFI Fund will provide programmatic and information technology support related to the allocation application between the hours of 9:00 a.m. and 5:00 p.m. ET through September 29, 2014. The CDFI Fund will not respond to phone calls or emails concerning the application that are received after 5:00 p.m. ET on September 29, 2014 until after the allocation application deadline of October 1, 2014. Applications and other information regarding the CDFI Fund and its programs may be obtained from the CDFI Fund's Web site at
A.
B.
C.
D.
In connection with this NOAA, the CDFI Fund may conduct one or more information sessions that will be produced in Washington, DC and broadcast over the internet via webcasting as well as telephone conference calls. For further information on these upcoming information sessions, please visit the CDFI Fund's Web site at
26 U.S.C. 45D; 31 U.S.C. 321; 26 CFR 1.45D-1.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is promulgating a source-specific Federal Implementation Plan (FIP) requiring the Navajo Generating Station (NGS), a coal-fired power plant located on the Navajo Nation near Page, Arizona, to achieve reductions in oxides of nitrogen (NO
Anita Lee, EPA Region 9, (415) 972-3958,
EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2013-0009. The index to the docket for this action is available electronically at
Throughout this document, “we”, “us”, and “our” refer to EPA.
EPA is taking final action pursuant to the CAA and the RHR to require Units 1, 2, and 3 at NGS to reduce emissions of NO
As part of our final action, EPA is also setting a source-specific BART Benchmark against which to compare the TWG Alternative to ensure that it will achieve greater reasonable progress than BART. The BART Benchmark is consistent with the BART determination we proposed on February 5, 2013, requiring all three units at NGS to meet an emission limit achievable with SCR within five years of a final rule. EPA is not finalizing our proposed BART determination for NGS in the regulatory requirements of this Final Rule.
EPA's action to finalize an alternative to BART consistent with the TWG Agreement will achieve greater NO
NGS is a coal-fired power plant located on the Navajo Nation Indian Reservation near Page, Arizona. The facility consists of three 750 megawatt (MW) coal-fired electric utility steam generating units with a total capacity of 2250 MW constructed from 1974 to 1976. The three units at NGS are co-owned by six entities: The United States Bureau of Reclamation (Reclamation) (24.3 percent); Salt River Project (21.7 percent), which also serves as the facility operator; Los Angeles Department of Water and Power (21.2 percent); Arizona Public Service (14 percent); NV Energy (11.3 percent); and Tucson Electric Power (7.5 percent).
Federal participation in NGS was authorized in the Colorado River Basin Project Act of 1968 as a preferred alternative to building hydroelectric dams in the Grand Canyon for the purpose of providing power to the Central Arizona Project (CAP).
Several tribes located in Arizona, including the Gila River Indian Community, the Ak-Chin Indian Community, the Tohono O'odham Nation, the San Carlos Apache Tribe, the White Mountain Apache Indian Tribe, the Fort McDowell Yavapai Nation, the Salt River Pima-Maricopa Indian Community, the Navajo Nation, the Yavapai-Apache Nation, the Hopi Tribe, the Pascua Yaqui Tribe, the Yavapai-Prescott Tribe, and the Tonto Apache Nation, have CAP water allocations or contracts. In exchange for allocations of CAP water at reduced cost and access to funds for the development of water infrastructure, the tribes with water settlement agreements have released their claims to other water in Arizona. Excess NGS power owned by Reclamation that is not used by CAP is sold and profits are deposited into the Lower Colorado River Basin Development Fund (Development Fund) to support the tribal water settlement agreements. The U.S. Department of the Interior (DOI or Interior), through Reclamation, plays an important role in the implementation of these settlement agreements and the management of the Development Fund.
The coal used by NGS is supplied by the Kayenta Mine, operated by Peabody Energy and located on reservation lands of both the Navajo Nation and the Hopi Tribe. Taxes and royalties from NGS and the Kayenta Mine are paid to the Navajo Nation and Hopi Tribe, contributing to the annual revenues for both governments. EPA understands that the process is underway to renew site leases for NGS and the Kayenta Mine, as well as associated rights of way agreements and contracts with the Navajo Nation and Hopi Tribe.
Given the extent of federal and tribal interests in NGS, on January 4, 2013, EPA, DOI, and the Department of Energy (DOE) signed a joint federal agency statement (Joint Statement) committing to collaborate on several short- and long-term goals, including analyzing and pursuing strategies for providing clean, affordable, and reliable power, affordable and sustainable water, and sustainable economic development to key stakeholders who currently depend on NGS.
In our Proposed Rules, we provided a detailed discussion of the statutory and regulatory framework for addressing visibility impairment in the mandatory Class I Federal Areas, addressing sources located in Indian country under the statute and the Tribal Authority Rule (TAR), and developing BART determinations pursuant to the CAA and the BART Guidelines set forth in Appendix Y to 40 CFR Part 51.
Title I, part C, subpart II of the CAA Amendments of 1977 establishes a visibility protection program that sets forth “as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from man-made air pollution.”
BART-eligible sources that are reasonably anticipated to cause or contribute to visibility impairment are “subject” to the BART requirements.
In determining BART, States are required to take into account five factors identified in the CAA and EPA's regulations.
In 1998, EPA promulgated the Tribal Authority Rule (TAR) relating to implementation of CAA programs in Indian country.
Under the CAA, compliance with emission limits determined to be BART must be achieved as expeditiously as practicable but not later than 5 years after the effective date of the final BART determination (See CAA 169A(b)(2)(A) and (g)(4)). As discussed in greater detail in our Proposed Rule, EPA
EPA's BART regulations allow an alternative in lieu of BART, provided the alternative results in greater reasonable progress than would have been achieved through installation of BART.
EPA published an advanced notice of proposed rulemaking (ANPR) concerning BART for NGS and the Four Corners Power Plant in August 2009.
Our Proposed Rule included a framework for evaluating alternatives to BART.
On July 26, 2013, a stakeholder group, known as the Technical Work Group on NGS (TWG), submitted an agreement that had been established among the seven diverse entities in the TWG. We refer to the July 26, 2013, document as the “TWG Agreement.” The TWG is composed of representatives from Central Arizona Water Conservation District (CAWCD), the Environmental Defense Fund (EDF), the Gila River Indian Community (Gila River or the Community), the Navajo Nation (Navajo), Salt River Project (SRP) on behalf of itself and the other non-federal owners, DOI, and Western Resource Advocates (WRA). Although EPA attended the opening session of a “kick-off” meeting for the TWG on March 21, 2013, at which we described our Proposed Rule, EPA did not otherwise participate in the TWG and was not involved in any of the discussions leading to submittal of the TWG Agreement.
Appendix B to the TWG Agreement contained TWG's recommendation for an alternative to BART. In general, the alternative plan in the TWG Agreement included closure of one unit at NGS, or curtailment of net generating capacity by an equivalent amount, in 2019 and compliance with a NO
EPA independently evaluated Appendix B to the TWG Agreement to determine whether it complied with the framework we put forth in our Proposed Rule, as well as the statutory and regulatory requirements in the CAA and the RHR. On October 22, 2013, EPA published a Supplemental Proposal describing the TWG Agreement and requesting comment.
In our Supplemental Proposal, we proposed to revise the numerical value of the BART Benchmark from our Proposed Rule. We also proposed a 2009-2044 NO
In addition to the enforceable 2009-2044 NO
In our February 5, 2013, proposal for NGS, EPA proposed an alternative to BART that we referred to asAlternative 1. EPA proposed to find that consideration of a compliance schedule beyond 2018 for Alternative 1 at NGS was appropriate for a number of reasons, including the importance of NGS to numerous Indian tribes located in Arizona and the federal government's reliance on NGS to meet the requirements of water settlements with several tribes. Providing this timeframe for compliance would not, in itself, avoid or mitigate increases in water rates for tribes located in Arizona; however, it would provide time for the collaborating federal agencies to explore options to avoid or minimize potential impacts to tribes, including seeking funding to cover expenses for the federal portion of pollution control at NGS.
In developing this framework, EPA proposed to exercise its authority and discretion under section 301(d)(4) of the CAA, 42 U.S.C. 7601(d)(4) and the TAR, 40 CFR 49.11(a), and proposed an appropriate timeframe for an alternative measure under the RHR for NGS. EPA considered this timeframe to be consistent with the general programmatic requirements. Under the RHR, States and regulated sources had almost 20 years from the issuance of the rule in 1999 to design and implement alternative measures to BART. For numerous reasons, including the myriad stakeholder interests and complex governmental interests unique to NGS, we are only now addressing the BART requirements for NGS.
Our proposal to require emission reductions beyond 2018 was supported by CAA section 301(d)(4) and the TAR codified at 40 CFR 49.11(a). The TAR reflects EPA's commitment to promulgate “such Federal implementation plan
The use of the term “provisions as are necessary or appropriate” indicates EPA's determination that it may only be necessary or appropriate to promulgate a FIP of limited scope. The United States Court of Appeals for the Tenth Circuit has previously endorsed the
EPA is finalizing our finding that it is necessary or appropriate to promulgate a source-specific FIP requiring NGS to achieve NO
EPA is promulgating four possible operating scenarios under the TWG Alternative (see Table 1). The operator of NGS must implement one of the four enforceable operating scenarios in order to comply with the 2009-2044 NO
In addition to the enforceable 2009-2044 NO
Under all TWG Alternatives, the operator of NGS must report to EPA annual emissions and heat input data and must make this information publicly available on its Web site. In addition, under TWG Alternative B, the operator must also submit to EPA annual Emission Reduction Plans projecting year-by-year emissions covering the 2020-2029 and 2030-2044 periods so that there is a plan for operation of NGS that ensures that cumulative emissions of NO
In our final rule, EPA has included several revisions to the proposed regulatory text (40 CFR 49.5513(j)) put forth in the Supplemental Proposal. The substantive revisions include:
1. Revision to § 49.5513(j)(3) to clarify that EPA is finalizing a “better than BART” Alternative;
2. Additions to § 49.5513(j)(3) to specify that the operator must temporarily cease operation of NGS if cumulative emissions of NO
3. Additions to § 49.5513(j)(3)(i)(A)(2), (B)(3), and (C)(2), to specify that the NO
4. Correction to § 49.5513(j)(3)(ii)(D), to specify that Alternative B shall also apply if either of the Departing Participants (i.e., LADWP or NV Energy) remains as a participant in NGS;
5. Addition of § 49.5513(j)(3)(iii), consistent with the TWG Agreement, to require the owners of NGS to cease its operation of conventional coal-fired generation at NGS no later than December 22, 2044;
6. Addition to § 49.5513(j)(4)(ii), to change the annual reporting date to begin in 2015 instead of the specific date of January 31, 2015, and specify that the report must be submitted to EPA and also made publicly-available within 30 days of the submittal deadline associated with the annual emission inventory required by the Part 71 Operating Permit for NGS;
7. Addition to § 49.5513(j)(4)(iii), to clarify that the Part 71 Operating Permit for NGS shall incorporate practically enforceable limits for NO
8. Addition of § 49.5513(j)(4)(iv)(C), to specify that the requirement to submit annual Emission Reduction Plans beginning no later than December 31, 2019, must be incorporated into the Part 71 Operating Permit for NGS as a federally enforceable permit condition.
9. Revision to § 49.5513(j)(7) to require the owner or operator of NGS to maintain records that document compliance with the NO
10. Deletion of § 49.5513(j)(7)(vi) that required record-keeping of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS because record-keeping of maintenance activities are not needed to ensure compliance with the 2009-2029 and 2009-2044 NO
11. Revision to § 49.5513(j)(11) to state that the affirmative defense provisions of paragraphs § 49.5513 (c)(2) and § 49.5513(i) do not apply to paragraph § 49.5513(j).
Revision (1) above is necessary to clarify that EPA is finalizing a “better than BART” alternative in lieu of BART.
Following the close of the public comment period, the United States Court of Appeals for the DC Circuit issued a decision concerning various aspects of the NESHAP for Portland cement plants issued by EPA in 2013, including the affirmative defense provision of that rule.
We note that, if a source is unable to comply with emission standards as a result of a malfunction, EPA may use case-by-case enforcement discretion, as appropriate. Further, as the DC Circuit recognized, in an EPA or citizen enforcement action the court has the discretion to consider any defense raised and determine whether penalties are appropriate.
The public comment period for our Proposed Rule opened on February 5, 2013. On two occasions, we extended the comment period on our Proposed Rule at the request of stakeholders, with a final closing date of January 6, 2014. Although we posted the pre-publication version of our Supplemental Proposal to the docket and to our Web site on September 25, 2013, the public comment period for the Supplemental Proposal officially began when it was published in the
We received over 77,000 written comments. Of these, over 76,800 comments came from private individuals who submitted substantially similar comments by email or postcard. We received an additional 300 unique written comments (not including duplicates, requests for extension of the public comment period, or requests for additional hearings) from a variety of individuals and entities, including tribal governments, environmental or public interest advocacy groups, water interest groups, groups representing industry or commerce, the operator and participants in NGS and the Kayenta Mine, elected officials, and state and local governments.
In this document, EPA is providing an abbreviated summary of the major comments and EPA's responses to those comments, grouped together by subject matter. The complete response to comments document (RTC) includes the full summary of all substantive comments and EPA's full responses to those comments. The RTC is included in the docket for this rulemaking.
Many commenters at the public hearings preferred the TWG Alternative because they believe that EPA's proposed BART determination would force NGS and the Kayenta Mine to close, causing economic harm to an area where the majority of residents are low-income and where opportunities for employment are limited. Many commenters stressed that NGS employs over 500 people and the Kayenta Mine has over 400 employees, and the loss of these jobs would only exacerbate the unemployment rate in the area, which currently ranges from 47 percent to 60 percent.
A number of commenters noted that NGS supplies more than 90 percent of the energy used by Central Arizona Water Conservation District (CAWCD), which operates the Central Arizona Project (CAP), which transfers water from the Colorado River throughout Arizona. A few commenters urged EPA to uphold its federal trust obligations and ensure that tribal communities continue to have access to affordable water, and advised EPA to make a decision consistent with the legal rights that the Gila River Indian Community and other stakeholders negotiated and that Congress granted under the Arizona Water Settlements Act of 2004.
A few commenters support the TWG Alternative because they believe it is a fair compromise created by a diverse group of stakeholders that provides a path for future operation at NGS by allowing for potential ownership changes and by providing an extension to install SCR technology, while still ensuring that the total emission reductions of NO
EPA agrees with comments that the TWG Agreement represents a compromise between diverse stakeholders, although we recognize that the members of the TWG did not invite all affected stakeholders to participate in their discussions. The TWG Alternative provides certainty for future operation of NGS, flexibility in the compliance timeframe, and more emission reductions of NO
Several commenters favor EPA's proposed BART determination for NGS because they believe that emissions from NGS cause health problems in the area, including respiratory illness and heart disease. One commenter cited a Clean Air Task Force study which states that NGS is responsible for approximately $127 million in health costs every year. Many of these commenters urged EPA to conduct health studies to determine the actual impact to health in these communities.
Some commenters favor stringent controls because they believe that emissions from NGS adversely affect native plant species and harm traditional dry land farming. Others assert that emissions from NGS can be linked to high levels of mercury found in fish species located in nearby lakes. Many commenters expressed concerns over the well-being of the Navajo Aquifer. A number of commenters favor stringent controls because they believe that emissions produced from NGS contribute to climate change.
In contrast, a few commenters questioned the extent to which emissions from NGS impact public health and the environment, asserting that the haze is a result of emissions from natural sources (e.g., volcanoes, wind/dust storms, and forest fires) and pollution produced from nearby cities (i.e., Phoenix, Los Angeles, and Las Vegas). Another commenter asserted that EPA's Web site states that vehicles are the largest producers of NO
Some commenters preferred EPA's proposed BART determination over the TWG Alternative because they believe that the alternative is based on a false premise. They asserted that the closure of a single unit is not equivalent to cleaning up all three units because the reduction in capacity will ultimately require new electricity generation elsewhere because the demand for power does not change.
EPA agrees that visibility-impairing pollutants are among the same pollutants that affect human and ecosystem health; however, health studies are beyond the scope of this BART analysis. Similarly, hazardous air pollutants (HAPs), such as mercury, are not visibility-impairing pollutants and therefore are beyond the scope of this BART analysis.
EPA agrees that climate change is an important issue.
EPA agrees with comments that mining and combustion of coal affect the environment. EPA notes that Reclamation has started its process to develop an Environmental Impact Statement (EIS) required under the National Environmental Protection Act (NEPA) for activities resulting from the continued operation of NGS and the Kayenta Mine.
EPA disagrees with the assertion that EPA is unfairly targeting stationary sources of emissions and ignoring the significant contribution of motor vehicle emissions. Consistent with title II of the CAA, the EPA Office of Transportation and Air Quality protects public health and air quality by, among other things, regulating air pollution from motor vehicles, engines, and the fuels to operate them.
EPA agrees that forest fires and volcanic eruptions, when they occur, can impact visibility to a greater extent than anthropogenic sources of emissions. However, Congress directed EPA to develop rules to address on-going emissions from stationary sources subject to BART to remedy the existing impairment of visibility in Class I areas and restore visibility to natural conditions.
EPA disagrees with assertions that the TWG Alternative is based on a false premise because the closure or curtailment of one unit would just result in electricity being produced elsewhere. Closure of one unit at NGS or the curtailment of an equivalent amount of electricity generation is possible based on LADWP and NV Energy's intended divestiture from NGS. Consistent with state law in California and Nevada, additional electricity needed to replace lost generation from NGS, associated with LADWP and NV Energy's divestiture, would come from energy sources that emit less air pollution than a conventional coal-fired power plant operating with SCR on all units.
Comments regarding specific aspects of the TWG Alternative are discussed in Section 9.0 of the RTC.
Several commenters consider the presence of NGS and several other power plants in and around the Navajo Nation to represent an environmental and economic justice issue. One commenter noted that a Navajo water hauler in Kaibeto, a Navajo community near Page, pays 10 to 20 times more for water, or $13,000 per acre foot, than municipal CAP water users in Glendale or a farmer in Tempe, who pay $551 and $41 per acre feet, respectively.
Several commenters opined that the leaders of the Navajo Nation and EPA have not protected the interests of the local population. A few expressed concerns over how the alternatives were written, noting that many tribal residents do not understand the technical language used in the documents and therefore cannot adequately comment on the validity of the alternatives proposed. Some commenters argued that pollution can be controlled using existing technology and EPA should apply the same standard to NGS as other coal-burning power plants (e.g., Four Corners Power Plant). A few commenters argued that extending the compliance timeframe for NGS demonstrates that the federal government considers itself exempt from federal law. Several argued that tribal communities do not have the funds to develop proposals and/or conduct environmental assessments and urged that EPA uphold federal trust responsibilities and create an equal playing field.
EPA takes fair treatment and meaningful involvement seriously and provided numerous opportunities for tribal governments, environmental and tribal non-governmental organizations, and other interested stakeholders to provide input in the development of our Proposed Rule, Supplemental Proposal, and Final Rule for NGS. EPA began our public involvement process for a BART determination for NGS in 2009, when we published an Advanced Notice of Proposed Rulemaking (ANPR). Although we initially provided a 30-day public comment period, at the request of tribal governments and other interested stakeholders, we extended the comment period for tribes another 30 days to October 28, 2009 and, to allow additional time for government-to-government consultation on NGS, agreed to accept comments from tribes until March 1, 2010.
EPA received over 6,000 comments on the ANPR.
On July 26, 2013, the TWG submitted Appendix B to the TWG Agreement to EPA for consideration. EPA posted the TWG Agreement to our docket on the same day to provide the public an opportunity to review it.
As stated in our Proposed Rule and Supplemental Proposal, EPA has determined that these proposed rules, if finalized, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because they increase the level of environmental protection for all affected populations (i.e., require emission reductions from NGS).
EPA recognizes that numerous commenters expressed frustration regarding social inequities related to costs and benefits of coal mining and combustion and water availability and cost. We recommend participating in the EIS process for NGS and Kayenta Mine to raise any concerns related to costs, benefits, and the environmental and social justice of coal mining and coal combustion at the Kayenta Mine and NGS.
Several commenters asserted that EPA underestimated the cost of compliance by improperly reworking cost estimates developed for SRP by Sargent and Lundy (S&L) in 2010 and disregarding real costs that would be incurred. One commenter quoted the BART Guidelines and the final RHR to assert that although the use of the Control Cost Manual is encouraged, it is not mandated, and that EPA has discretion to use additional sources of cost information. The commenter believes, therefore, that the SRP estimates for the excluded cost items are appropriate to use because they are more precise than the generic statements that EPA relied upon in the Control Cost Manual.
EPA used a hybrid approach for our cost analysis that relied primarily on the cost estimates provided by SRP, but also followed the BART Guidelines to determine whether S&L included cost estimates for services or equipment associated with SCR that were not allowed under the EPA Control Cost Manual. The BART guidelines state “[i]n order to maintain and improve consistency, cost estimates should be based on the OAQPS Control Cost Manual, where possible”.
As discussed in the TSD to the proposed rulemaking, EPA made four adjustments to SRP's cost estimates for SCR, namely, to exclude “Owners Construction Management, O&M Support and Contract Service,” “Owners Legal Support and Insurance,” and “Allowance for Funds Used During Construction,” and to use an interest rate of 7 percent.
In our proposed rule, we presented total capital and total annual cost estimates from EPA and SRP, as well as average and incremental cost-effectiveness values based on EPA and SRP assumptions for total annual cost and total annual NO
One commenter asserted that EPA overestimated the cost of installing SCR at NGS. Although the commenter supported EPA's adjustments to the S&L cost estimates, the commenter asserted that further revisions are appropriate. The commenter stated that EPA overestimated the following costs: Outage costs associated with installation and “preinstallation” work; catalyst costs; and auxiliary power. In addition, the commenter asserted that EPA overestimated annual costs by assuming 20 years as the basis for amortizing costs and using an inflated interest rate of 7 percent.
Although the commenter concurs with EPA's conclusion that SCR plus LNB/SOFA is cost-effective at $2,240
SRP contracted with S&L in 2013 to review and update the SCR cost estimates that were prepared in 2010. S&L escalated costs for inflation, and incorporated other minor adjustments to reflect a lower NO
In our proposed BART determination, EPA also presented the average and incremental cost-effectiveness of controls, based on the combination of combustion controls (LNB/SOFA) and post-combustion controls (i.e., SNCR or SCR). Therefore, cost-effectiveness values presented in our Proposed Rule were based on total annual cost of SCR in combination with annual cost of LNB/SOFA (SCR+LNB/SOFA), SNCR in combination with LNB/SOFA (SNCR+LNB/SOFA) or LNB/SOFA alone.
Based on the revised 2013 cost estimates for SCR+LNB/SOFA, the revised average cost-effectiveness of SCR+LNB/SOFA is roughly 10 percent higher (based on EPA's estimates) than the average cost-effectiveness values
One commenter stated that in establishing presumptive limits in the BART Guidelines, EPA recognized that SCR is not cost-effective and that combustion controls such as LNB/SOFA represent the most cost-effective control options for most boiler types. The commenter pointed out that in establishing presumptive limits, EPA considered controls that cost less than $1,500 per ton to be cost-effective, and that the cost-effectiveness for SCR at NGS, which ranges from $3,000 to $6,000 per ton based on 2010 estimates, is well above this threshold. The commenter concluded that EPA should have rejected SCR and proposed LNB/SOFA as BART for NGS.
The Gila River Indian Community asserted that EPA conducted the analysis of cost-effectiveness incorrectly by not including the indirect costs of the requirements and only considering the direct cost of the requirements. The commenter stated that EPA did not give sufficient consideration to the high costs to tribes associated with indirect impacts of its proposed BART determination.
However, because of the unique relationship between NGS, tribes, and tribal water settlement agreements, and to inform our government-to-government consultation with tribes, EPA did consider potential indirect effects of control options to tribes under Factor 2. EPA quantified the impact to electricity rates and CAP water rates, and also assessed whether installation of SCR would result in electricity generation costs at NGS that exceed the cost to purchase power on the wholesale market. Therefore, although EPA appropriately did not consider indirect costs in our analysis of Factor 1, EPA did include consideration of indirect impacts to tribes and other entities in our analysis of Factor 2.
One commenter submitted a report, prepared by Management Information Services, Inc. (MISI report), asserting that EPA made several assumptions that underestimated the cost of continuing to operate NGS with additional controls, including the assumption that no new capital would be deployed at NGS over the next 25 years, the assumption that the increase in the annual NGS lease cost would be $15 million per year (which is lower than actual increase in lease cost of $43 million per year that was released after publication of our Proposed Rule), and the use of EPA's capital cost estimates for SCR instead of the cost estimated by S&L.
Other commenters asserted that EPA underestimated the cost of closing NGS and purchasing power on the wholesale market, by not accounting for costs associated with stranded investments and decommissioning NGS.
In response to multiple comments expressing concern related to simplifying assumptions or outdated data, EPA updated the Affordability Analysis with the most current power market price curves from the U.S. Energy Information Administration (EIA) and recent forward power market prices in March 2014 and other more current modeling variables. These
One commenter stated that, as a result of errors and omissions, EPA's Factor 2 analysis is arbitrary, capricious, and an abuse of discretion. The commenter asserted that there are several problems with the EPA analysis related to NIA users of CAP water, including erroneous assumptions, insufficient support for conclusions, failure to consider decreased farming profitability and increased unemployment, failure to acknowledge the inability of NIA water users to pass along cost increases as compared to municipal users, and other factors.
EPA disagrees that our discussion of impacts to NIA users of CAP water renders our Factor 2 analysis arbitrary, capricious, and an abuse of discretion. Neither the CAA nor the BART Guidelines require consideration of indirect costs or indirect impacts of controls in a BART analysis. EPA, nevertheless, included an evaluation of impacts to some of the major stakeholders in NGS in our BART analysis under Factor 2, including NIA users, as consistent with the statement in the BART Guidelines that “the energy impacts analysis
EPA recognizes that the information we had available to us about NIA users of CAP water was limited, and we acknowledged in the TSD to our Proposed Rule that we had several questions about CAP and groundwater availability to NIA water users. EPA appreciates the clarifications and additional information provided by NIA users of CAP water during the comment period for our proposals. The additional information provided during the comment period about NIA users of CAP water does not change our conclusion under Factor 2, that the potential economic impacts to tribes argue for flexibility in the compliance timeframe for NGS, because this compliance flexibility also benefits other stakeholders, including the NIA users of CAP water.
One commenter asserted that the BART proposal must take into account the context in which the regional haze rules are being implemented and conduct a cumulative impact analysis of all EPA rulemakings. The commenter noted that the two remaining copper smelters in Arizona are already subject to BART for SO
One commenter stated that the increased cost of electricity generation associated with SCR would reduce the competitiveness of the price of NGS power on the wholesale market and therefore reduce the revenue that flows into the Development Fund.
One commenter asserted that EPA has no basis for claiming that the NO
Based on EPA's statement in the Proposed Rule that the early installation of LNB/SOFA would not influence EPA's BART determination and EPA's use of a baseline scenario in the visibility modeling that did not include LNB/SOFA, the operator of the Kayenta Mine concluded that EPA failed to consider existing controls.
As discussed in section 8.5 of the RTC, EPA properly considered baseline emissions over the period 2001-2003 in our analysis of cost-effectiveness and anticipated visibility benefits of controls. Therefore, although we did not “consider existing controls” in the exact manner preferred by the commenter, we appropriately considered the existence of LNB/SOFA in Factor 3 of our BART analysis. In addition, the “better than BART” framework that we used to assess and finalize BART alternatives explicitly accounts for the existing LNB/SOFA.
Several commenters noted that NGS spent millions of dollars on LNB/SOFA to reduce NO
One commenter stated that installing LNB/SOFA prior to a requirement to do so under the RHR or any other CAA requirement has resulted in greater total NO
Numerous commenters questioned the extent to which NGS impacts visibility at Class I areas or disputed EPA's analysis that installation of SCR at NGS would improve visibility. Many commenters asserted that the haze is produced from emissions from other sources.
Some commenters stated that the wind near and around the Grand Canyon blows predominantly west to east; thus, emissions from the NGS are pushed away from several Class I areas, not towards them.
On the issue of wind direction, we note that the CALPUFF modeling uses three years of hourly meteorological input, which is based on meteorological modeling as well as observational data from stations throughout a large area. The input includes wind speed and direction, and would include the particular wind direction patterns noted by the commenter. The more sophisticated meteorological treatment in CALPUFF enables it to track the pollutant plume from NGS, including its twists and turns over multiple days. We consider this approach to adequately account for variability in winds noted by the commenter.
One commenter stated that the visibility benefits of SCR are greater than those modeled by EPA because EPA underestimated SCR performance and because EPA overestimated the potential increase in sulfate emissions that may come with the addition of SCR controls by assuming an SO
Several commenters argued that EPA's assumed ammonia background concentration of 1 part per billion (ppb), the default value recommended by the Interagency Workgroup on Air Quality Modeling (IWAQM), is unrealistically high compared to measured values in the area, resulting in artificially high model projections of visibility impacts, particularly in the winter.
One commenter cited an analysis conducted on behalf of SRP by AECOM and Dr. Ivar Tombach. The commenter stated that the Tombach study compared modeled predictions of
One commenter noted that when the IWAQM guidance was issued 14 years ago, CALPUFF did not have the capability of accommodating monthly ammonia background concentrations as it has since been updated to do. The commenter asserted that EPA's reliance on a constant value is an outdated approach.
We have carefully reviewed the comments and concluded that, on balance, the evidence does not support using lower values for background ammonia concentrations, as argued by the commenters, in estimating the visibility impacts from NGS. Much of the existing measured data cited by the commenters is from other states and may not be representative for evaluating visibility impacts from NGS.
We further note that there are measurements of gaseous ammonia alone that show concentrations close to or greater than the concentration of 1 ppb, even in winter when ammonia concentrations are expected to be lowest. Winter measurements, representing 3-week averages, ranged from 1.1 ppb to 1.8 ppb at a monitor at the Farmington Airport in northwestern New Mexico.
We further note that there is significant variability in the concentrations of ammonia measured at different times and places. Even the SRP monitoring report (Tombach & Paine, 2010, cited above) describes a surprisingly high spatial variability in ammonia concentrations. Because of the variability and its unknown causes, the data collected for SRP did not lead to a clear picture of appropriate and representative background ammonia concentrations to use with CALPUFF.
Finally, we note that using the background ammonia concentrations recommended by commenters does not change our conclusion under Factor 5 because CALPUFF modeling of SCR shows substantial visibility benefits even using the alternative assumptions.
Several commenters asserted that EPA erred in using CALPUFF version 5.8 in its modeling rather than the more recent CALPUFF version 6.42, released by TRC. One commenter argued that CALPUFF version 6.42 predicts lower visibility benefits than version 5.8.
One commenter discussed the findings of an analysis conducted after the closure of the Mohave Power Project (MPP) (a 1,580 MW coal-fired power plant) to evaluate whether the closure had resulted in improved visibility in Grand Canyon National Park.
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One commenter argued that the final BART emission limit should be more stringent and no higher than 0.04 lb/MMBtu. The comment noted that permitting authorities have required lower NO
EPA disagrees with the commenter's assertion that emission limits associated with BART must meet BACT or the lowest emission rate ever achieved with that technology at any coal-fired power plant. The BART Guidelines state that: “[i]n assessing the capability of the control alternative, latitude exists to consider special circumstances pertinent to the specific source under review, or regarding the prior application of the control alternative”, (70 FR 39166) and that “[t]o complete the BART process, you must establish enforceable emission limits that reflect the BART requirements . . .” (70 FR 39172). The five-factor BART analysis described in the Guidelines is a case-by-case analysis that considers site specific factors in assessing the best technology for continuous emission controls. After a technology is determined as BART, the BART Guidelines require establishment of an emission limit that reflects the BART requirements, but does not specify that the emission limit must represent the maximum level of control achieved by the technology selected as BART. For these reasons, EPA is not using the lower limit recommended by the commenter in setting the BART Benchmark.
Several commenters asserted that the NO
The S&L report generally argues that because the emission limit is established based on a 30-BOD average basis, the proposed emission limit of 0.055 lb/MMBtu is not consistently achievable at NGS. The S&L analysis is based on a design target of 0.03 lb/MMBtu and suggests an emission limit in the range of 0.07-0.08 lb/MMBtu would be required to accommodate periods of load-cycling operation, startups, and shutdowns. S&L is recommending a limit that is 2.3 to 2.7 times higher than the design target, or a compliance margin of 133 to 167 percent.
The S&L report discusses the temperature limitations associated with SCR and explains that at temperatures below a specific minimum operating temperature, a component of the SCR system (i.e., ammonia injection) must cease to prevent ammonium salt formation on the catalyst. S&L asserts that a minimum operating temperature of 580 °F is typical for retrofit SCR control systems installed on coal-fired electric generating units with similar coal sulfur content and states that this temperature corresponds with a gross load of approximately 650 MW (650 gross MW, or MWg). S&L further assumes that SRP will likely modify the units to increase flue gas temperatures at lower operating loads by installing one of several options for low load temperature control. In their analysis, S&L assumes the low load temperature control would be achieved with a water-side bypass (to allow water to bypass the economizer tube bundles during low-load operation). The S&L report
Using the assumption that the SCR would not operate at loads below 450 MWg, S&L used 2012 operations data at NGS to estimate emission rates at NGS assuming a design target of 0.03 lb/MMBtu with actual steady-state operations achieving 0.04 lb/MMBtu. S&L modeled eighteen different operating scenarios and identified seven scenarios, which included periods of low load cycling along with unit startup and shutdowns, that resulted in the maximum 30-BOD average for each unit and facility-wide, that exceeded 0.055 lb/MMBtu. The highest 30-BOD average S&L modeled was 0.077 lb/MMBtu for Unit 2, achieved under 3 different operating scenarios involving low-load cycling.
SRP and S&L did not provide the underlying data used in the S&L analysis. Therefore, EPA evaluated the S&L report by reviewing emissions data from the EPA Air Markets Program Data (AMPD) for multiple years, as well as emissions data from other facilities that were constructed or retrofit with SCR. EPA sought to understand 2012 operations at NGS within the context of longer term operational trends at the facility, as well as understand the minimum operating load assumed by S&L for NGS within the context of minimum operating loads at other facilities with SCR.
EPA evaluated the reported hourly gross load operating data for Units 1-3 at NGS for the years 2001, 2003, 2010, 2011, 2012, and 2013.
Based on the gross load operating profiles for six years, EPA estimated the rolling 30-BOD averages for each BOD to determine whether the operating profiles (which included actual startup, shutdown, and load-cycling in each year) would result in 30-BOD averages that would exceed 0.055 lb/MMBtu. Based on our analysis, EPA projected the highest 30-BOD average to be 0.079 lb/MMBtu (Unit 2 in 2010). Using 2012 data, representative of load-cycling operation, EPA projected the highest 30-BOD average to also occur on Unit 2 (0.075 lb/MMBtu). Similarly, S&L projected the highest 30-BOD average in 2012 was from Unit 2, at 0.077 lb/MMBtu. Therefore, although the scenarios modeled by S&L and EPA were not identical, the highest 30-BOD averages projected by EPA and S&L, using similar starting assumptions, were comparable. Our analysis, of projected SCR performance, which included emission and operating profiles of actual startup and shutdown events, and load-cycling in various years, showed that Unit 3 was not projected to exceed 0.055 lb/MMBtu in any of the evaluated years, and that there were several years within these six selected years that Units 1 and 2 would also not exceed 0.055 lb/MMBtu.
The analysis of projected 30-BOD average emission rates assumes that S&L's value of 450 MWg (or 55 percent capacity) for the minimum operating load to operate SCR at NGS is correct. EPA notes that 450 MWg was a value that S&L assumed based on preliminary analysis of available low load temperature control systems. SRP submitted a similar S&L analysis to EPA for Units 1 and 3 at Coronado Generating Station (CGS).
EPA evaluated emission data of eight well-performing units burning PRB coal and generated empirical estimates for minimum operating loads and capacity requirements for SCR operation at those facilities. Based on this analysis (see RTC for further detail), EPA estimated capacity requirements for SCR operation that ranged from 35 percent to 46 percent, with an average value of 40 percent. Using the average (40 percent) and the maximum (46 percent) capacity requirement to operate SCR, EPA projected that NGS would meet a limit of 0.055 lb/MMBtu (on a 30-BOD average) for all but 3 cases (i.e., Units 1 and 2 in 2012, and Unit 2 in 2010) under the 46 percent capacity requirement. Under the 40 percent capacity requirement to run SCR, Units 1 and 2 in 2012 would remain below 0.055 lb/MMBtu and for Unit 2 in 2012 the highest 30-BOD average was projected to be exactly 0.055 lb/MMBtu. Operation of Unit 2 in 2010 was not typical of normal operation. Please see RTC for more detail on this analysis.
The S&L report concludes that even with a design target for SCR of 0.03 lb/MMBtu, a limit of 0.07-0.08 lb/MMBtu is required to accommodate periods of startup, shutdown, and load-cycling operation. EPA agrees that load-cycling operation appears to be an important factor; however, EPA concludes that the critical S&L assumption, that the units at NGS must operate at approximately 55 percent capacity in order for the SCR to operate, was not sufficiently supported and was acknowledged by S&L to be an assumption based on a preliminary review of available low-load temperature control systems. EPA also notes that in the S&L revised 2013 cost analysis, S&L included costs for hot water recirculation systems which
In summary, EPA is finalizing a BART Benchmark based on an emission limit for NGS of 0.055 lb/MMBtu on a rolling 30-BOD basis. In determining the achievability of this limit, EPA has conducted an analysis that considers actual periods of startup, shutdown, and low-load cycling. Based on the understanding that S&L would design the SCR system at NGS to a design target of 0.03 lb/MMBtu, the BART limit of 0.055 lb/MMBtu represents an adequate compliance margin to accommodate periods of startup, shutdown, and load-cycling operation.
Several commenters noted that with existing LNB/SOFA controls, NGS emits NO
One commenter stated that the CAA requirement for BART to be installed “as expeditiously as practicable” requires installation and full implementation of SCR on all three units at NGS within 3.5 years rather than five years. The commenter stated that EPA provided no site-specific factors at NGS that would require a longer-than-average installation time for SCR (particularly in light of the fact that it appears contractors in the region will not be overwhelmed).
In addition, although EPA cited one facility where the retrofit of seven units required 35 months, EPA also stated “ideally, longer than 35 months would allow for all the retrofits to occur over a period of several years so that facility owners can properly plan outages and suppliers can properly plan for resource availability.”
The commenter also states that “it appears contractors in the region will not be overwhelmed” to justify why installation time for SCR should not be longer than average.
In taking action to finalize a BART Benchmark, EPA is retaining the five year compliance period as proposed. Because BART compliance at NGS involves the design, procurement, and installation of SCR on three units and upcoming ownership changes at NGS as discussed in our proposed rule, EPA is determining that a five-year BART compliance timeframe at NGS is as expeditious as practicable. This is within the range cited by the commenters and the facility operator (i.e., average of 21 to 47 months per unit, or 35 months to 67 months for multiple units at one facility) and is consistent with the CAA which requires BART compliance as expeditiously as practicable but no later than five years following the effective date of the final rule.
Several commenters supported EPA's statement in the Proposed Rule that “[b]ecause emissions of PM are well controlled at NGS through federally enforceable limits, EPA is not proposing that it is “necessary or appropriate” under the TAR to determine BART for PM emissions at NGS.”
Some commenters noted that implementation of the Mercury and Air Toxics Standards (MATS) in the near future will establish an additional federally enforceable limit for PM of 0.03 lb/MMBtu. The commenters added that the BART Guidelines provide that one can generally rely on MACT standards for purposes of BART.
In contrast, two commenters asserted that EPA was incorrect to determine that it need not evaluate BART for control of PM at NGS. The commenter asserts that the existing PM limit of 0.06 lb/MMBtu was not based on a BART analysis and does not reflect a well-controlled PM emission rate for a coal-fired EGU.
One commenter asserted that the electrostatic precipitators (ESPs) at NGS do not represent the best system of control for PM. The commenter believes that EPA's determination is inconsistent with recent BART and BACT
One commenter asserted that EPA should require fabric filter baghouses as BART for PM. EPA cannot agree or disagree that baghouses would be required as BART for PM because, as described above, we have determined that it is not necessary or appropriate at this time to conduct a BART determination for PM at NGS.
Several commenters noted that EPA recognized in the Proposed Rule that the emission limits EPA established for SO
Several commenters discussed and supported EPA's policy and legal rationale for its discretion to approve “better than BART” alternatives and to provide an extended period for implementation of such an alternative at NGS. One commenter also opined that the 5‐year compliance period for BART that is defined in section 169A(g)(4) of the CAA applies by its terms only to: (1) SIPs, by providing that the BART compliance date shall be no later than “
We also note that regardless of whether the commenter is correct that the CAA does not require compliance with the BART requirements within five years for sources subject to a FIP in Indian country, we consider five years to be a reasonable timeframe for the installation and operation of SCR at NGS. To the extent the commenter is correct that the timing provisions of section 169A(g)(4) are outside the scope of EPA's action to implement a FIP in Indian country under section 301 and the TAR, this further supports EPA's determination that extending the compliance deadline beyond 2018 for a BART alternative at NGS is appropriate.
EPA also agrees with the comment that approving the TWG Alternative for NGS will not compromise the ultimate goal of the RHR based on progress toward eliminating human‐caused visibility impairment in Class I areas by 2064.
One commenter stated that EPA may approve an alternative to BART only under certain limited circumstances, with the fundamental legal requirement being a demonstration that the alternative will “achieve greater reasonable progress toward natural visibility conditions” as supported by the clear weight of evidence. The commenter indicated that there are two ways EPA can make such a
EPA appropriately focused on a comparison of the emissions reductions from BART and the TWG Alternative, rather than using visibility modeling to compare the two approaches. As the commenter noted, EPA's regulations provide a specific two-pronged test that may be used to demonstrate that a BART alternative achieves greater reasonable progress. In this rulemaking, EPA has applied the first prong of that test to demonstrate that the TWG Alternative provides for greater reasonable progress. The first prong of the test, set out in 40 CFR 51.308(e), states that if the distribution of emissions is not substantially different under BART and the alternative, and “the alternative measure results in greater emission reductions,” the alternative may be deemed to achieve greater reasonable progress. Because both BART and the TWG Alternative apply to the same source the geographic distribution of emissions is similar.
The commenter argues, however, that the emissions must be temporally similar in order for this test to apply. When EPA added § 51.308(e)(3) to the regional haze regulations in 2005, however, we made clear that EPA intended this test to apply where the geographic distribution of emissions between the BART and an alternative were similar.
EPA is accordingly determining that the provisions for retiring capacity and installing SCR under the TWG Alternative achieve a similar geographic distribution of emissions and that the appropriate test to apply is whether the alternative provides for greater emissions reductions than BART. In applying that test, EPA considers it reasonable to consider the cumulative emissions under BART and the BART alternative, rather than to simply compare annual emissions in some future year under the two scenarios. This approach provides a reasonable mechanism to give credit to NGS for its early reduction in NO
The commenter also objects to EPA's decision to approve a BART alternative that will not be fully implemented by 2018. EPA agrees that the regional haze rule requires BART alternatives to be fully implemented by states by 2018, the end of the first planning period for states that were required to submit regional haze plans.
We note that in this action, although the TWG Alternative will not be fully implemented until 2044, NO
This result is equitable as well as reasonable. States were required to submit SIPs in 2007, allowing 11 years for a “better than BART” alternative to be achieved in 2018. Because this is a FIP for a source in Indian country, and we are only now implementing the requirement in 2014, it is equitable to extend the compliance time as well. Please see the RTC for a more detailed discussion.
In summary, EPA is determining that the TWG Alternative is “better than BART” based on achieving greater NO
Aside from its assertions that an approach using a BART Benchmark based on total emissions is not lawful under the CAA, one commenter (an organization representing itself and several other non-governmental organizations) stated that EPA's assumptions in calculating a numerical value for the BART Benchmark included errors and improper credits. Specifically, the commenter asserted that: (1) EPA's credit for the early installation of LNB/SOFA runs counter to the Regional Haze Rule, EPA's longstanding policies, and EPA's specific statements regarding the haze determination for NGS, (2) EPA's proposal to delay BART due to the LNB/SOFA credit creates a dangerous precedent that threatens to significantly undermine the regional haze program, (3) EPA made a number of errors in its calculations that all have the effect of artificially inflating the BART Benchmark. The specific errors purported by the commenter are outlined in more detail in the RTC. The commenter asserts that in total, assuming a final rule by July 1, 2014, their recommended revisions to the BART Benchmark would reduce the estimated emissions under BART during EPA's chosen timeframe (2009-2044) by nearly 100,000 tons, a reduction of approximately 26 percent. The commenter asserted that if EPA persists in using the emission cap framework, EPA must correct the NO
The commenter alleges that “EPA's claimed reliance on “early” LNB/SOFA as an excuse to avoid or delay what is legally required is misplaced and without foundation in the facts or law.”
First, the commenter's use of quotation marks around the word “early” implies that the LNB/SOFA modifications were not, as a factual matter, installed early. However, EPA notes that in 2008, when the operator of NGS began discussions with EPA regarding the permitting requirements associated with the significant increase in carbon monoxide (CO) emissions that would result from the installation of LNB/SOFA, EPA had already begun our process for evaluating BART for NGS, but had not yet proposed a BART determination or put forth our ANPR. Therefore, no requirement existed that mandated the installation of LNB/SOFA at NGS. In addition, the operator of NGS was aware that a BART determination, that would likely involve but may not be limited to LNB/SOFA, was forthcoming. As noted in our Proposed Rule, the operator of NGS could have waited until the compliance date for BART to initiate any reductions in NO
In addition, each of the three citations provided by the commenter does not support its assertions that our proposal to credit NGS for the early installation of LNB/SOFA runs counter to the Regional Haze Rule or EPA's long-standing policies. These three citations merely address the appropriate baseline period to use in the five-factor BART analysis. Page 18 of the Stamper Report supports our use of 2001-2003 as the baseline period for our BART determination for NGS and cites to 64 FR 35728 of the July 1, 1999 Regional Haze Rule that discusses EPA's determination that the most appropriate baseline period would be over the 2001 to 2004 timeframe. The baseline period is used for evaluating the costs and visibility benefits of controls. The Stamper Report also cites Section IV.D.4.d of the BART Guidelines at 40 CFR Part 51 Appendix Y, that states baseline emissions should generally
The commenter also cited the discussion in our Proposed Rule under Factor 3, where we described, in 2008, how the early installation of LNB/SOFA would not prejudice the implementation of more effective controls for BART. As stated previously, we did not use the LNB/SOFA credit to justify a less stringent determination of BART for NGS. The commenter characterizes the credit as a shift in course from the agreements and understandings established in 2008 during the PSD permit process for the installation of LNB/SOFA. EPA disagrees. As stated in our Proposed Rule, citing the Ambient Air Quality Impact Report from the 2008 Proposed PSD Permit, EPA stated that the early installation of LNB/SOFA systems would not affect the baselines for cost or visibility improvements, and therefore will not influence EPA's determination of the NO
The commenter relies on EPA's statements about the appropriate baseline period to support an assertion that in a BART analysis, EPA should not give consideration or credit for controls installed after the baseline period. As stated in section 5.0 of the RTC (section 5.0), although we appropriately acknowledged the installation of LNB/SOFA after the baseline period at NGS under Factor 3 (existing controls at the facility), our analysis of cost-effectiveness and anticipated visibility benefits appropriately compared SCR+LNB/SOFA against the 2001-2003 baseline period.
EPA's proposed credit for early installation of LNB/SOFA was not associated with our five-factor analysis or BART determination for NGS. Rather, EPA discussed the LNB/SOFA credit in our framework for evaluating alternatives to BART. Specifically, in discussing our framework for BART Alternatives, EPA calculated the cumulative NO
EPA disagrees with the assertion that this credit creates a dangerous precedent that threatens to significantly undermine the regional haze program. EPA notes that part of our rationale for the better than BART framework for NGS (including the credit for the early installation of LNB/SOFA and the adjusted compliance timeframe for BART Alternatives) was the potential impacts to numerous tribes that rely on NGS and/or CAP, as well as EPA's regulations specifying that SIP submittal deadlines that apply to states do not apply to Tribes (or to EPA when implementing FIPs in Indian country). Further, EPA notes that the relationship between NGS and CAP is unique, the only other BART-eligible source in Indian country is the Four Corners Power Plant, and EPA has already completed the BART determination and FIP for this facility.
EPA also disagrees with the assertion that we overestimated the BART Benchmark and NO
In addition, the commenter recommends that EPA use average heat input over the baseline period (i.e., over 2001-2003) rather than the average over the pre-LNB/SOFA time period (i.e., average over 2001-2008) to calculate future emissions. The commenter notes that our calculations for cost-effectiveness use baseline heat input over 2001-2003 to calculate pre- and post-control emissions (approximately 5,264 tons per year). The commenter asserts that this inconsistency is arbitrary. The commenter correctly notes that EPA used the average heat input over 2001-2008 (the pre-LNB/SOFA time period) to estimate emissions over 2009-2019 that would have occurred if the operator of NGS had not installed LNB/SOFA early, and emissions over 2019 to 2044 under BART (5,345 tons per year). The average heat input over the baseline period of 2001-2003 was 191,505,266 MMBtu, while the average heat input over 2001-2008 was 194,373,910 MMBtu. This is a difference of about 1.5 percent. EPA agrees that use of the same 2001-2003 baseline heat input value for estimating pre- and post-control emission rates is appropriate and consistent with the RHR and BART Guidelines, particularly in light of the goal of understanding the effect of a given control technology on emissions (i.e., assume identical values for baseline and future heat input to isolate the impact of control technologies). However, this approach does not mean that an average from the three-year baseline period (2001-2003) is most appropriate for estimating future emissions in determining the BART Benchmark. EPA notes that the use of average heat input for 2001-2008 includes the baseline period recommended by the commenters and provides a larger data set, and therefore a more robust average value for estimating future emissions. EPA considers the use of an average value based on three years to be less robust than an average value based on eight years of data for representing potential future operation; therefore, EPA is retaining our use of the average heat input over 2001-2008 for estimating emissions over 2009-2044. EPA further notes that emission caps in permit requirements are typically established based on the facility's potential to emit (PTE) and would thus be calculated using maximum heat input values. The highest observed annual heat input value was 199,398,687 MMBtu and, if used in the NO
The commenter also argues that in calculating the NO
Separately, the commenter also asserts that EPA overestimated the 2009-2044 NO
The commenter argues that for the period of 2009-2013, actual heat input data should be used to calculate the NO
The commenter also asserts that LNB/SOFA could have been required in two years, on a separate compliance timeframe than installation of SCR and that this should have been incorporated in our calculation of the NO
Although the commenter makes assertions related to purported overestimations of the BART Benchmark and the 2009-2044 NO
One commenter asserted that EPA double-counted the benefits of the early installation of LNB/SOFA, stating that EPA calculated cumulative emissions for the BART alternatives including the benefits of early reductions, then subsequently applied a LNB/SOFA credit again to BART alternatives.
In our February 5, 2013 proposed rule, EPA calculated the value of the LNB/SOFA credit based on the difference between total emissions under the BART scenario where LNB/SOFA is installed concurrently with SCR and the actual scenario when LNB/SOFA was installed early. The value of this credit was then applied to total emissions over 2009-2044 under Alternative 1.
In our October 22, 2013 Supplemental Proposal, EPA approached the calculation from a different but equivalent perspective. The new calculation approach was used because it was more intuitive to apply and understand in the context of an enforceable cap on NO
One commenter stated delaying the compliance date for BART will allow NGS to continue emitting pollutants in excess of the levels modeled by the WRAP and will interfere with the ability of Arizona, Utah, and Colorado to meet their reasonable progress goals for 2018.
Meanwhile, we note that for NGS, the WRAP assumed that NO
One commenter argued that the 2009-2044 NO
The commenters indicate that their access to CAP Ag Pool water is expected to end in 2030, and assert that the timeframes for compliance with the limit of 0.07 lb/MMBtu in 2030 would necessitate water rate increases prior to 2030. The commenter asserts that it is arbitrary and capricious for NIA water users to pay a few years of higher CAP water rates for controls that will not be operational until after their access to the CAP Ag Pool expires. EPA notes that the direct impact of compliance with the limit of 0.07 lb/MMBtu in 2030 under the TWG Agreement, presumably with installation and operation of SCR, would be on the cost of electricity generation. Increasing water rates are indirect impacts that result from the relationship between NGS and CAP. EPA does not set or determine water rates charged by CAWCD to the CAP Ag Pool or any other classes of CAP customers. EPA's proposed and final approval of requirements consistent with the TWG Agreement as a “better than BART” alternative is based on our review of the anticipated emission reductions associated with the TWG Alternative compared to BART. Although EPA, DOI, and DOE have committed to work together on many issues related to NGS, including funding for the federal portion of capital improvements at NGS, EPA does not determine how controls would be financed and how and when electricity or water rates would be adjusted to recover costs.
The Gila River Indian Community said that even though it fully supports the TWG Alternative, it is concerned that EPA has not met its obligations to the Community because of the significant costs on NGS and associated impacts on the Community. Rather, the commenter views the TWG Alternative as the first step in a process that will limit the impacts on the Community because only under the TWG Alternative will key U.S. commitments contained in the TWG Agreement be realized. Specifically, under the TWG Agreement, and as outlined by the commenter, DOI will work with the Community and other tribes in the area around NGS, to evaluate the actual impacts the regulatory requirements will have on NGS over time. The commenter specifically referred to the U.S. commitment to allocate $10 million annually for 10 years starting in 2020, from the Reclamation Water Settlements Fund to reduce impacts to the Development Fund.
One commenter stated that a BART determination must include clear requirements for emissions reductions and a clear timeline for those reductions, to ensure continuing visibility improvements in Class I areas. The commenter indicated that without specific emission limits and/or commitments to retire specific amounts of capacity from specific units, as of a date certain, it is impossible to calculate the visibility improvements that will result from the TWG Alternative, particularly TWG Alternatives A3 and B, and it will be impossible for individuals or EPA to assess whether NGS is on track to meet the emission reductions necessary to ensure reasonable progress toward natural visibility in affected Class I areas.
Contrary to the assertions by commenters, EPA included proposed regulatory language in our Supplemental Proposal that provided specific and enforceable timelines for achieving emission reductions under the TWG Alternative. The proposed language under 40 CFR 49.5513(j)(3)(i), “Operating Scenarios to Comply with 2009-2044 NO
TWG Alternative A2 is defined in § 49.5513(j)(3)(i)(B) and requires (1) by December 31, 2019, the owner/operator shall permanently cease operation of one coal-fired unit, and (2) by December 31, 2019, the owner/operator may elect to increase net generating capacity of the remaining two coal-fired units by a combined total of no more than 189 MW. The actual increase in net generating capacity shall be limited to the sum of 19 MW and the ownership interest, in net MW capacity of up to 170 MW, purchased by the Navajo Nation by December 31, 2019. The owner/operator shall ensure that any increase in the net generating capacity is in compliance with all pre-construction permitting requirements, as applicable, and (3) by December 31, 2030, the owner/operator shall comply with a NO
TWG Alternative A3 is defined in § 49.5513(j)(3)(i)(C) and requires (1) by December 31, 2019, the owner/operator shall reduce net generating capacity of NGS by no less than 561 MW. The actual reduction in net generating capacity of NGS shall be determined by the difference between 731 MW and the ownership interest, in net MW capacity of up to 170 MW, purchased by the Navajo Nation by December 31, 2019, and (2) by December 31, 2030, the owner/operator shall comply with a NO
TWG Alternative B is defined in § 49.5513(j)(3)(i)(D) and requires that in addition to the 2009-2044 NO
The commenter asserts that under the scenario of reduced capacity (three units remain open, i.e., TWG Alternative A3), EPA ignored other possible outcomes and simplistically assumed that two units would continue to operate at full capacity with SCR and the unit whose operation is curtailed would operate only with LNB/SOFA. The commenter asserts that there is no guarantee that the operator will choose to comply with TWG Alternative A3 in this manner. Although this specific arrangement under TWG Alternative A3 is not required, EPA disagrees that nothing compels the operator to comply with this operating scenario in a manner that reduces emissions comparably with the assumption that two units would operate at full capacity with SCR and the unit that is curtailed would operate with LNB/SOFA. EPA notes that under TWG Alternative A3, as well as all other TWG Alternatives, the owner/operator must operate the units at NGS so that total emissions remain below the 2009-2044 NO
As noted in our Supplemental Proposal, EPA estimated total NO
The commenter asserts that there are an infinite number of ways the operator could comply with the 2009-2029 and 2009-2044 NO
Although we disagree with commenters that the TWG Alternative is vague and unenforceable, in response to the concerns expressed by these commenters, to provide additional assurance that cumulative emissions of NO
One commenter asserted that EPA was incorrect to claim that the TWG Alternative would absolve NGS of obligations related to a Reasonably Attributable Visibility Impairment (RAVI) finding that may be made for NGS.
EPA is finalizing the requirements of the TWG Alternative, consistent with Appendix B of the TWG Agreement, which require, among other things, emission reductions in 2019 and 2030. EPA is also adding as an enforceable requirement, the commitment from the TWG Agreement to cease conventional coal-fired electricity generation at NGS by 2044. EPA considers these timeframes to be consistent with the stated goal of section 169A of the CAA. EPA has addressed comments regarding consistency with EPA's regulations, including the RHR and the TAR, in section 8.5 of the RTC.
The Hopi Tribe indicated that it has serious concerns with the proposed TWG Alternative for several reasons, including because the TWG Alternative does not specify the technology, i.e., either SCR or an equivalent that will be used to achieve the same level of NO
One commenter stated that the 2009-2044 period analyzed for the TWG Alternative is arbitrary because it is quite likely that one or more NGS units will operate beyond that time frame. The commenter asserted that if NGS units continue to operate for even 3 additional years, until 2047, the TWG Alternative permits outcomes that will result in greater total NO
One commenter stated that neither EPA nor TWG have provided a comprehensive technical analysis of the emissions that are possible under the TWG Alternative. The commenter asserted that it is EPA's responsibility to provide an administrative record that contains comprehensive modeling and analysis for any BART proposal, but EPA left this critical component of the alternatives analysis undone.
The commenter provided its own calculations of emissions under TWG Alternative A and B and compared those estimates with its own calculation of a NO
The comment relies on a report prepared by Nathan Miller and Ranijit Sahu (Miller/Sahu) for the commenter contending that EPA's evaluation of the TWG Alternative is incorrect. But the report changes the central inputs underlying our calculations for BART and the TWG Alternative. The specific technical reasons that we disagree with the inputs that Miller/Sahu changed (e.g., NO
Table 2 in the Miller/Sahu report depicts BART-1 as “EPA BART (No Corrections),” showing a value of 379,152 tons of cumulative NO
Because we disagree with the “corrections” and the values presented in the Miller/Sahu report, we also disagree with the conclusions of Miller/Sahu that the TWG Alternative fails to satisfy our requirements for demonstrating an alternative is “better than BART”. The commenter cannot change the fact that its alternative preferences on the inputs for calculating BART are just preferences by simply calling them “corrections.”
One commenter stated that the TWG Alternative distributes emissions over time very differently than BART: While BART would require NO
The Miller/Sahu Report compared anticipated visibility impacts from the TWG Alternative against the anticipated visibility impacts based on its own preferences for the NO
EPA conducted visibility modeling to compare TWG Alternatives A1, A2, and A3 in 2019 and 2030 against the BART Benchmark.
Our visibility modeling of the TWG Alternatives compared to our proposed BART determination shows that, as expected, during the approximate 10-year period between 2019 and 2030, the visibility impacts of NGS under the TWG Alternatives are higher than the visibility impacts of NGS under BART. After 2030, when NGS achieves additional emission reductions through compliance with a limit of 0.07 lb/
As noted elsewhere in the RTC, EPA is including as part of the TWG Alternative, in the regulatory language in the Final Rule, a provision consistent with the TWG Agreement that the operator of NGS permanently cease conventional coal-fired generation by the end of 2044. Thus, under the TWG Alternative, the visibility impact of NGS is likely to be zero or near zero in 2045 and thereafter.
The Hopi Tribe expressed concern that EPA did not assess the potential economic impacts of the TWG Alternative to the Hopi Tribe. The commenter opined that EPA recognized the significance of NGS to the Hopi Tribe in its analysis under Factor 2. Because the TWG Alternative includes closure of at least one unit in 2019, and EPA did not address the potential economic impacts of partial closure of NGS on the Hopi Tribe, the commenter contended that the Agency has not complied with the RHR and BART Guidelines. The Hopi Tribe noted that in the event capacity is reduced at NGS under the Supplemental Proposal, the amount of coal and water purchases from the Tribe would decrease leading to a decrease in income to the tribe from the sale of these. The commenter also stated that the Supplemental Proposal is not as effective in improving air quality and visibility for the Hopi Reservation. Extending the timeframe during which NGS can continue to operate without SCR or an equivalent technology would cause a continued air quality burden on the Hopi Tribe.
The Hopi Tribe also expressed concern that the TWG Alternative is less effective than BART at improving air quality and visibility on the Hopi Reservation. EPA notes that the purpose of the RHR is to reduce visibility impairment at Class I areas; however, EPA disagrees that the TWG Alternative is less effective than BART. Although the timeframe for implementation of the TWG Alternative (new reductions in 2019 and 2030) is longer than the timeframe for BART (in 2019), we note that BART would only reduce emissions of NO
The TWG noted that there were several differences between Appendix B to the TWG Agreement and EPA's Supplemental Proposal of the TWG Alternative. The commenters expressed support for some of the differences, and expressed concern with others. One commenter agreed with the methodology that EPA used to calculate the 2009-2044 NO
The commenter supported the additional requirement to report annual heat input, although this information is already reported through the Acid Rain Program. However, the commenters requested that additional time be provided to ensure that the data submitted in the annual report are consistent with the data that the NGS operator submits to the Clean Air Markets Database (CAMD), in the annual emission inventory, and in the greenhouse gas (GHG) report required by 40 CFR part 98, which are not due until March 31st.
The TWG requested that EPA clarify the scope and content of the title V permit revision that is necessary to incorporate elements of the BART alternative by adding the language from Appendix B of the TWG Agreement to the requirements of the TWG Alternative.
We further note that in the proposed regulatory language in our Supplemental Proposal, EPA inadvertently did not specify an averaging period for the emission limits under the TWG Alternative Operating Scenarios (§ 49.5513(j)(3)). Therefore, EPA is adding to the regulatory language that emission limits apply over a rolling average of 30 boiler operating days, to 40 CFR § 49.5513(j)(3), (j)(3)(i)(A)(2), (j)(3)(i)(B)(3), and (j)(3)(i)(C)(2).
The TWG stated that the Supplemental Proposal specified a short‐term NO
The TWG stated that the EPA described the NGS ownership outcomes in a manner that is different from the scenarios outlined in the TWG Agreement. The commenter indicated that the ownership outcomes appear to be consistent, except that one potential outcome was omitted—the scenario in which one or more of the existing NGS Participants (LADWP or NV Energy) remain in NGS, which would trigger Alternative B.
The TWG expressed concern that EPA only briefly described the elements of the TWG Agreement in the Supplemental Proposal. One member of the TWG asserted that the limited discussion does not accurately present the provisions of the Agreement as it relates to clean energy economic development for affected Tribes, the rigorous development and consideration of clean energy alternatives to NGS, mitigation of CO
The comment also requests EPA to add certain language to the Final Rule. Specifically, the comment asks EPA to add: “Nothing in this final rule shall preclude the NGS Participants from seeking to obtain greenhouse gas emission reduction credits, or similar commodities associated with activities committed to in the TWG Agreement, under any Federal or State law or policy to the extent permitted under such applicable law or policy.”
EPA is also declining to add the requested language to our Final Rule. EPA is not exercising any authority in this action other than implementing the BART provisions in CAA section 169A and the RHR, through our discretion in the TAR. It would be inappropriate in this action to take any position on the future use or regulation of GHG emission reductions or “similar commodities.”
One member of the TWG stated that the TWG Alternative was intended to meet not only BART requirements, but also reasonable progress requirements applicable to NGS through 2044. The commenter requested that EPA acknowledge, in the preamble to the Final Rule, that the TWG Alternative satisfies both the BART and reasonable progress requirements of the CAA through 2044.
One member of the TWG requested that EPA delete the requirement that the NGS operator keep records of all major maintenance activities that occur at NGS. According to the commenter, the existing title V permit, which requires that the operator maintain and operate emission control equipment in a manner that is consistent with good engineering practices to keep emissions at or below applicable emissions limitations, provides sufficient assurance that emission control equipment will be operated and maintained in accordance with best practices.
One commenter indicated that the requirement to maintain records for 5 years is insufficient and inappropriate for the compliance schedule associated with NGS and recommended that records be maintained from 2009 through the remaining operating life of the plant.
Numerous commenters expressed frustration that all affected parties were not included in the development of the TWG Alternative. The Hopi Tribe noted that they have a Generating Performance Agreement with SRP that should have mandated their involvement. The White Mountain Apache Tribe also noted that it was not party to the TWG Agreement. Another commenter noted that Executive Order (EO) 13175 requires that all tribal nations be consulted on these types of regulations, and asserted that EPA and DOI violated this EO. Another commenter argued that the TWG did not include grassroots organizations and discouraged their participation in TWG public forums.
One commenter stated that the EPA did not give the public enough time to comment on the TWG Alternative before proposing approval of it and, on that basis, demanded that the EPA withdraw its proposed approval. The commenter added that the TWG Agreement assumes that the Hopi will support the Kayenta Mine Lease extension when it expires in 2025, but the Hopi have yet to discuss the extension with the 12 Hopi independent villages, which is a requirement in the Hopi Constitution. Furthermore, the commenter noted that the TWG Agreement ignores the requirement of completing an EIS and ROD before the NGS site lease with the Navajo Nation expires in 2019. The commenter argued that DOI's signing of the TWG Agreement, without the fulfillment of these requirements, violates NEPA. The commenter added that in 1989, the Hopi Tribe rejected the Draft Kayenta Mine-Black Mesa Mine EIS in its entirety, and implied that the decision to accept the TWG proposal could compromise EPA's final decision.
EPA disagrees that we did not provide the public enough time to review the TWG Alternative. EPA posted the TWG Alternative to the public docket on July 26, 2013, the same day it was submitted to EPA.
The White Mountain Apache Tribe stated that although EPA stated it was not involved in the Technical Work Group, EPA was a signatory of the “Joint Federal Agency Statement Regarding Navajo Generating Station,” the scope of which includes numerous elements that reference EPA's commitments, along with the Departments of the Interior and Energy, in relation to NGS. The commenter suggests that EPA was involved in a legal triangulation with the TWG signatories and that such action is an extra-jurisdictional exercise by EPA, to which the Tribe does not consent. The commenter concludes that the Tribe cannot consider the TWG Alternative unless its published form is changed by EPA to fully disentangle the proposal from the signatory group and all non-BART Agreement terms, and additional public comment is thereafter allowed.
Although EPA clearly has an interest in reducing the visibility impacts of NGS, EPA was not part of the TWG. EPA did not participate in any of the substantive discussions and negotiations of the TWG. Two representatives of EPA attended the beginning of the first meeting of the TWG but only to present a summary of EPA's February 5, 2013 Proposed Rule.
The TWG was not primarily composed of federal agencies. The TWG had two Tribes (Gila River Indian Community and the Navajo Nation), two environmental organizations (Environmental Defense Fund and Western Resource Advocates), two Arizona utilities (CAWCD and SRP) and DOI. Appendix B of the TWG Agreement contains provisions relating to BART but there were several other provisions of the TWG Agreement that are beyond the scope of BART and are not part of EPA's rulemaking in this action.
For all the above reasons, EPA does not agree with the assumption underlying the comment that the White Mountain Apache Tribe “cannot consider the TWG Alternative unless its published form is changed by EPA to fully disentangle the proposal from the signatory group and all non-BART Agreement terms.” EPA does not agree that any further public comment is warranted.
Despite its objections to the proposed BART alternatives, one commenter suggested an alternative that includes (1) an enforceable requirement that one NGS unit shut down by 2020 and (2) an enforceable requirement that the remaining two units install SCR and meet a NO
One commenter presented a table purporting to show EPA's calculations of the NO
The same commenter also stated that based on the 2009-2044 NO
As stated elsewhere in the RTC, we disagree with the assertion that BART for NGS is an emission limit associated with SNCR (0.15 lb/MMBtu) or a less stringent limit associated with SCR (0.06 or 0.07 lb/MMBtu). Therefore, the additional time for compliance suggested by the commenters using higher BART Benchmarks or NO
The Tonto Apache Tribe and the San Carlos Apache Tribe commented that both the original BART proposal and the proposed TWG Alternative are contrary to the obligations of the United States and its trust responsibilities to Indian Tribes under CAP. The commenters stated that both regulatory programs would have disproportionate impacts on tribes with CAP contracts. The commenters noted that environmental quality is of utmost importance to the tribes, but that clean air is the responsibility of all citizens. Therefore, the commenters assert that because the United States owns 24.3 percent of NGS, the costs of compliance for that 24.3 percent share should be shared among all American people, who will benefit from cleaner air. The commenters urged EPA to develop an alternative regulation that does not place additional burden on Indian Tribes.
Although EPA is finalizing a BART Benchmark for NGS, the regulatory requirements of this Final Rule will include only the requirements and compliance timeframes for the TWG Alternative as proposed in our Supplemental Proposal. Under the TWG Alternative, emission reductions at NGS would be achieved in phases, including closure of one unit or the equivalent in 2019, and compliance with an emission limit achievable with SCR in 2030. We note that the closure of one unit was possible because of the planned divestment of LADWP and NV Energy from NGS by 2019. Because LADWP and NV Energy are unrelated to CAP, EPA does not expect substantial compliance costs to be borne by Reclamation (and thus, tribes or other CAP water users) due to the first phase of emission reductions at NGS in 2019. EPA further notes that the 2030 compliance date for meeting an emission limit achievable with SCR on two units at NGS is approximately 16 years from the present day. As stated elsewhere in the RTC, the requirements
EPA recognized the potential impacts to tribes of our proposed BART determination and sought ways to provide flexibility and a framework for affected stakeholders to develop alternative approaches to BART. EPA has determined that the TWG Alternative achieves greater emission reductions than would otherwise be achieved under our BART determination, while providing additional time for compliance. This additional time allows the DOI, DOE, and EPA time to work with tribal stakeholders to identify and implement strategies for achieving the goals outlined in the Joint Federal Agency Statement on NGS.
Several commenters indicated that EPA overstepped its authority and stated that EPA's proposal hinders the state's ability to deal with environmental issues on a local level. One commenter stated that EPA's regulations are an attack on free enterprise, and believes that the agenda of the current administration is to ban all coal-fired power plants regardless of the economic effect.
EPA disagrees that the regulations promulgated in this action, which are requirements consistent with the TWG Agreement, constitutes an attack on free enterprise. The TWG Alternative was submitted to EPA by a stakeholder group that had determined it was a more cost-effective approach to continuing to operate NGS than a prior proposal by EPA. EPA considered the direct costs of compliance in our five-factor BART analysis, and although not specifically required in the BART Guidelines, EPA also considered numerous indirect impacts and costs in our analysis of Factor 2. The comment provides no information other than conclusory statements that EPA failed to adequately consider the cost of compliance. EPA also disagrees that there is any agenda or effort to ban coal burning electricity generation. The TWG Agreement, as agreed upon by the members of the TWG, includes a provision that specifies continued operation of NGS as a conventional coal-fired power plant until 2044 when its lease with the Navajo Nation expires. Therefore, this rulemaking does not constitute a ban on burning coal.
The Navajo Nation commented that EPA should improve communication at the start of any rulemakings to ensure that the Navajo Nation can provide meaningful information. The commenter said that even when the Agency develops supporting rule information like the RIA the Navajo Nation would like to be involved as it could impact the Nation. The commenter pointed out that EPA has known for decades that the Navajo Nation would be impacted by regulation of NGS and FCPP. The commenter quoted excerpts from Executive Order 13175—Consultation and Coordination with Indian Tribal Governments and said that the standard for determining if a regulation has tribal implication is not whether it “impose[s] substantial
The Navajo Nation stated that it was not consulted during the development of the ANPR and indicated that in August of 2009, one day prior to the ANPR for NGS and FCPP, EPA made a courtesy call to the President of the Navajo Nation. The Navajo Nation believes that if early and meaningful consultation with the Nation had occurred this could have led to an adequate analysis of BART controls and careful examination of non-air quality impacts.
The Gila River Indian Community expressed similar concerns regarding the lack of consultation. During a consultation on August 7, 2012, the commenter stated that it was their understanding that EPA would describe to the Community the proposed regulation prior to the rulemaking being issued. Instead, the commenter said, EPA called the night before issuing the rule, which the commenter said was inadequate and inconsistent with the expectations regarding consultation. The commenter also understood that the rule was to be proposed in September 2012 but it was not proposed until January 2013 and in the meantime several stakeholders provided additional input to the Agency. However, the Community was not consulted during this time. In addition, the Community expects an explanation of the final rule after it is issued by EPA.
The Hopi Tribe also commented on the lack of consultation and involvement of tribes in developing the regulation. The commenter submitted multiple letters to EPA indicating its concern about not being involved in the development of the rule or consulted but without providing pertinent information. In one of the letters, the commenter said that the government acknowledged the Hopi Tribe as a stakeholder and the intention to work with the Tribe; however, contrary to statements in the Joint Federal Agency Statement on NGS to work with tribes, the Hopi Tribe was not included in the TWG.
The Hopi Tribe specifically indicated that it was denied information regarding the TWG Alternative and the development of the alternative, something the commenter pointed out is essential in order to provide relevant and useful comments to EPA. The commenter said that it has submitted two Freedom of Information Act (FOIA) requests to DOI, which included documentation related to NGS and information documenting DOI's representation of the Hopi Tribe during the negotiation of the TWG Alternative. The commenter said that until it has the information requested via FOIA, it is not able to provide written comments on the TWG Alternative.
The Hopi Tribe asserted that it is has been treated differently than other tribal stakeholders in the TWG Agreement. For example, the TWG Agreement states that SRP will advocate to EPA the Navajo Nation's treatment as state (TAS) status. The Hopi Tribe indicated that the TWG Alternative protects the economic interests of the Navajo Nation and the Gila Indian Community but compromises the coal revenues of the Hopi Tribe and contains no mitigation measures for the significant and adverse economic impact. The Hopi Tribe indicated that it will be disproportionately and adversely affected by the reduced capacity at NGS.
The Kaibab Band of Paiute Indians expressed similar concerns regarding the lack of involvement of Indian Tribes and demanded that EPA consider the requests of the Kaibab Paiute. The commenter referred to the TWG Agreement and requested that the Kaibab Paiute Indian Reservation receive $2.5 million of the $5 million
The Tohono O'odham Nation objected that a number of Indian nations that would be substantially affected by the rule were excluded from the TWG. The commenter noted that it is particularly concerned with maintaining CAP water delivery under whatever rule is finalized by EPA.
EPA agrees with the Navajo Nation that Executive Order 13175 defines “policies that have tribal implications” to refer to regulations or other actions that have substantial direct effects on one or more Indian tribes.
To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute . . .
In our discussion of EO 13175, we included consideration of substantial direct compliance costs to tribal governments, as well as the broader consideration of substantial direct effects on one or more Indian tribes. We conclude that our proposed action on NGS
In our proposed rule, EPA provided a document that listed all written or telephone correspondence as well as consultation meetings between EPA and Tribes on NGS. Although the commenter suggests that EPA's telephone call to the President of the Navajo Nation one day prior to the signature of the ANPR in August 2009 was our first communication with the Nation on the subject, we note that the timeline includes a meeting between EPA and the Navajo Nation that occurred two months prior to the ANPR to discuss EPA's plans to move forward on an ANPR related to our ongoing BART analyses for FCPP and NGS.
The Navajo Nation, the Hopi Tribe, the Gila River Indian Community, the Tohono O'odham Nation, the Ak-Chin Indian Community, the Pascua Yaqui Tribe, the Fort McDowell Yavapai Nation, and the Yavapai-Apache Nation, and the Inter Tribal Council of Arizona submitted comments to EPA on the ANPR. EPA summarized and provided responses to comments received from tribal governments in the TSD for our proposed rule on NGS.
Following the publication of our proposed rule on February 5, 2013, EPA engaged in 17 consultation meetings with tribes prior to the January 2014 close of the public comment period.
Several tribes also expressed concern that the Technical Work Group included only two tribes, the Navajo Nation and the Gila River Indian Community, and excluded numerous other tribes that also have a significant economic interest in NGS. EPA recognizes that many tribes were not included in the development of the TWG Agreement. EPA was not involved in the formation of the TWG or any of the negotiations between the members of the TWG in developing the TWG Agreement. In addition, our evaluation of the TWG Agreement was for the sole purpose of determining whether Appendix B to the TWG Agreement meets our framework for a “better than BART” Alternative. Therefore, although EPA agrees that many tribes have economic interest in NGS and CAP, EPA does not have any role in the distribution of funds described in the TWG Agreement.
Based on numerous consultation meetings between high-level officials from EPA and elected tribal leaders, beginning in 2009 and extending into 2013, and our development of flexible options for BART Alternatives in response to comments from tribes, EPA considers our consultation on NGS to be consistent with EO 13175 and EPA's policy to engage in early and meaningful consultation with tribes.
On February 5, 2013, EPA issued a proposed BART analysis of NO
On July 26, 2013, a stakeholder group, known as the TWG, submitted an agreement among seven diverse entities (TWG Agreement) that included an additional BART alternative (Appendix B to the TWG Agreement). In general, this alternative includes closure of one unit at NGS, or curtailment of net generating capacity by an equivalent amount, in 2019 and compliance with an emission limit of 0.07 lb/MMBtu on two units at NGS in 2030. The TWG Agreement also included a provision requiring the owners of NGS to cease conventional coal-fired generation at NGS by the end of 2044. EPA independently evaluated Appendix B to the TWG Agreement to determine whether it complied with the framework we put forth in our Proposed Rule, as well as the statutory and regulatory requirements in the CAA and the RHR.
On October 22, 2013, EPA published a Supplemental Proposal. Our Supplemental Proposal contained a detailed evaluation of Appendix B to the TWG Agreement along with a discussion of our legal rationale for proposing to approve requirements consistent with the TWG Agreement as a “better than BART” alternative. Our Supplemental Proposal and this Final Rule refer to our regulations that are generally consistent with Appendix B to the TWG Agreement as the “TWG Alternative.” The Supplemental Proposal (i.e., the TWG Alternative) included regulatory requirements to achieve substantial NO
Based on our review of all comments we received on the Proposed Rule and Supplemental Proposal, EPA is taking action to finalize requirements consistent with the TWG Agreement, as a “better than BART” Alternative (TWG Alternative) put forth in our Supplemental Proposal. EPA is also taking final action to determine that a BART Benchmark, consistent with our proposed BART determination, is appropriate for establishing the 2009-2044 NO
This Final Action is expected to result in over an 80 percent reduction in NO
This action will finalize a source-specific FIP for a single generating source. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) 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
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
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9.
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 this action on small entities, I certify that this final action will not have a significant economic impact on a substantial number of small entities. The Navajo Generating Station is not a small entity and the FIP for Navajo Generating Station being finalized today does not impose any compliance requirements on small entities.
This rule will impose an enforceable duty on the private sector owners of Navajo Generating Station. However, this rule does not contain a Federal mandate that may result in expenditures of $100 million (in 1996 dollars) or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. EPA's estimate for the total annual cost to install and operate SCR on all three units at NGS if it had been required to comply with BART does not exceed $100 million (in 1996 dollars) in any one year. Because we are finalizing requirements consistent with Appendix B to the TWG Agreement, which provides more flexibility than EPA's proposed BART determination and would, at most, require installation and operation of SCR on two units, rather than three units at NGS, EPA expects the total annual cost of implementing the TWG Alternative to also not exceed $100 million (in 1996 dollars). Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule will not impose direct compliance costs on the Navajo Nation, and will not preempt Navajo law. This final action will reduce the emissions of NO
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or in the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final action requires emission reductions of NO
Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement. EO 13175 defines “policies that have tribal implications” to refer to regulations or other actions that have substantial direct effects on one or more Indian tribes.
EPA has concluded that this Final Action will have tribal implications based on the direct relationship between NGS and the Navajo Nation. In addition, EPA anticipates that the following direct and indirect effects may result from the TWG Alternative and Reclamation's ownership interest in NGS: Decreased revenues to the Hopi Tribe and the Navajo Nation associated with the closure of one unit or curtailment of electricity generation in 2019; and increased water costs to tribes associated with the installation of controls to meet an emission limit of 0.07 lb/MMBtu in 2030. However, it will neither pre-empt Tribal law nor impose substantial direct compliance costs on tribal governments (no tribal government is an owner or participant in NGS and therefore no tribal government will be required to pay direct costs of compliance). We note that the Navajo Nation has the option to purchase up to a 170 MW share of NGS in 2019. EPA understands that the Navajo Nation has not yet made its decision and therefore, currently, no tribal government is a Participant in NGS.
The owners of NGS, together with the Navajo Nation, the Gila River Indian Community, and several other stakeholders, submitted the TWG Agreement to EPA that would provide compliance flexibility to the owners and result in greater reasonable progress than BART toward the national visibility goal. This TWG Alternative involves closure or curtailment of production on one unit of NGS and installation of add-on pollution controls to the remaining two units. EPA issued a Supplemental Proposal proposing to find that the TWG Alternative met the requirements of the CAA and RHR. Today, EPA is finalizing requirements consistent with the TWG Agreement. Because the TWG Alternative involves the closure or curtailment of production on one unit and an associated decline in the amount of coal mined and combusted, to the extent that taxes or royalties paid to the Hopi Tribe and the Navajo Nation by the operators of Navajo Generating Station and the Kayenta Mine, are tied to the amount of coal that is mined or the amount of electricity that is generated at NGS, the revenues to the Hopi Tribe and Navajo Nation may be expected to decline. In addition, under the TWG Alternative, when the installation of add-on pollution controls occurs in 2030, EPA expects the CAWCD variable OM&R water rate to increase, affecting tribes with allocations of CAP water.
EPA consulted with tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. EPA first put forth an
EPA received numerous comments on the ANPR from tribes and tribal organizations, including the Navajo Nation, Hopi Tribe, Gila River Indian Community, Ak-Chin Indian Community, Tohono O'odham Nation, Pascua Yaqui Tribe, Fort McDowell Yavapai Nation, Yavapai-Apache Nation, and the Inter Tribal Council of Arizona. Comments from the Navajo Nation on NGS and from the Hopi Tribe focused on the significant contribution of coal-related royalties, taxes, and employment at NGS and the Kayenta Mine to the economies of the Navajo Nation and the Hopi Tribe. Comments from the Gila River Indian Community, the Tohono O'odham Nation, and other tribes located in Arizona focused on the importance of continued operation of NGS as a source of power to CAP, in order for the federal government to meet obligations under existing water settlement agreements. The importance to tribes of continued operation of NGS and affordable water costs cannot be overemphasized.
Given the extent of federal and tribal interests in NGS and the federal government's trust responsibility to Indian tribes, on January 4, 2013, EPA, DOI, and DOE signed a joint federal agency statement committing to collaborate on several short- and long-term goals, including analyzing and pursuing strategies for providing clean, affordable and reliable power, affordable and sustainable water, and sustainable economic development to key stakeholders who currently depend on NGS.
In our February 5, 2013 Proposed Rule, EPA exercised discretion to include in our analysis of Factor 2 (Energy and Non-Air Quality Impacts), an examination of the viability of continued operation of NGS if new NO
In addition to our proposed BART determination for NGS, EPA also proposed a framework for evaluating alternatives to BART that provide options for flexibility in achieving emission reductions at NGS. EPA proposed an alternative to BART consistent with our proposed framework and invited stakeholders to submit other alternatives to BART that reduce NO
Following our Proposed Rule, the TWG, which included the Navajo Nation, the Gila River Indian Community, and the Interior, together with four additional groups, submitted their agreement (TWG Agreement) that contained an additional BART alternative for consideration (Appendix B to the TWG Agreement). Although EPA was not part of the TWG, we note that the TWG Agreement included seven elements, including elements directly or indirectly related to tribes, i.e., commitments by Interior to mitigate potential impacts from EPA's final BART rule to Affected Tribes and a commitment by SRP to make funds available for a Local Benefit Fund for community improvement projects within 100 miles of NGS or the Kayenta Mine.
EPA has met with tribes on numerous occasions to discuss the significance of NGS to tribal economies and tribal water interests in Arizona.
In recognition of the unusual complexity of regulating NGS, representatives from EPA, including the Assistant Administrator and the Deputy Assistant Administrator for the Office of Air and Radiation and the Regional Administrator for Region 9, visited NGS and affected communities in the area. EPA officials have also met with additional stakeholders, at various locations, including EPA offices in San Francisco, California and Washington, DC, and offices of individual tribal governing councils and the Inter Tribal Council of Arizona.
Following the publication of our proposed rule on February 5, 2013, EPA engaged in 17 consultation meetings with tribes prior to the January 2014 close of the public comment period.
Several tribes expressed concern that the Technical Work Group included only two tribes, the Navajo Nation and the Gila River Indian Community, and excluded numerous other tribes that also have a significant economic interest in NGS. Several tribes also asserted that the Proposed Rule and Supplemental Proposal have disproportionate impacts on tribes with CAP water settlements and urged EPA to develop an alternative regulation that does not place an additional burden on Indian tribes. Another tribe requested that a portion of the funds identified in the TWG Agreement be designated to their tribe.
EPA recognizes that many tribes did not participate in the development of the TWG Agreement. EPA was not involved in the formation of the Technical Work Group or any of the negotiations between the members of the TWG in developing the TWG Agreement. In addition, our evaluation of the TWG Agreement was for the sole purpose of determining whether the TWG Alternative (Appendix B to the TWG Agreement) meets our framework for a “better than BART” Alternative. Therefore, although EPA agrees that many tribes have economic interests in NGS and CAP, EPA did not have a role in the TWG Agreement and does not have any role in the distribution of funds described in the TWG Agreement.
EPA recognizes that our final action will have tribal implications. Because we are taking action to finalize requirements consistent with the TWG Agreement, EPA anticipates that increases in CAP water costs as a result of the installation of new air pollution controls at NGS would not occur until 2030. In addition, as stated elsewhere, EPA has committed to collaborating with other federal agencies to explore options to avoid or minimize potential impacts to tribes, including seeking funding to cover the expenses for the federal portion of pollution control at NGS.
In summary, EPA has taken numerous steps, as described in the preceding paragraphs, to evaluate the potential impacts on Tribes and to identify and provide the flexibility for others to develop alternative approaches that would meet the requirements of the CAA and the RHR while being as sensitive as possible to concerns raised by Tribes. Through the Joint Federal Agency Statement on NGS, the federal government has recognized its obligations through its trust responsibility and through its specific historical and ongoing involvement with NGS and water rights settlements with Tribes. That agreement reflects our commitment to ongoing engagement with affected Tribes and to the pursuit of a long-term solution for electricity generation that is protective of the economic interests of Tribes and public health and the environment.
Based on numerous consultation meetings between high-level officials from EPA and elected tribal leaders, beginning in 2009 and extending into 2013, and our development of flexible options for BART Alternatives in response to comments from tribes, EPA considers our consultation on NGS to be consistent with EO 13175 and EPA's policy to engage in early and meaningful consultation with tribes.
Executive Order 13045:
This rule is not subject to Executive Order 13045 because it requires emissions reductions of NO
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 (10) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by the VCS bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when the Agency decides not to use available and applicable VCS.
Consistent with the NTTAA, the Agency conducted a search to identify potentially applicable VCS. For the measurements listed below, there are a number of VCS that appear to have possible use in lieu of the EPA test methods and performance specifications (40 CFR Part 60, Appendices A and B) noted next to the measurement
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.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.
EPA recognizes that numerous commenters have stated that this rulemaking has environmental justice implications because NGS, which is among the largest coal-fired power plants in the country, is located on the Navajo Nation. Commenters have also expressed concern that the documents associated with this rule are too technical for community members to understand. Some commenters have also argued that EPA should apply the same standard to NGS as other coal-burning power plants (e.g., Four Corners Power Plant), and that the extended compliance timeframe for NGS is an environmental justice issue.
Fair treatment and meaningful involvement are critical components of environmental justice and EPA takes fair treatment and meaningful involvement seriously. We provided numerous opportunities for tribal governments, environmental and tribal non-governmental organizations, and other interested stakeholders to provide input in the development of our Proposed Rule, Supplemental Proposal, and Final Rule for NGS.
As discussed in more detail in the RTC, EPA began our public involvement process for a BART determination for NGS in 2009, when we published an Advanced Notice of Proposed Rulemaking (ANPR). During 2009 through 2012, EPA met with various stakeholders, including tribal governments and Navajo environmental groups to discuss NGS and hear concerns related to a BART determination for this facility.
On July 26, 2013, the TWG submitted the TWG Agreement to EPA for consideration. EPA posted the TWG Agreement to our docket on the same day to provide the public an opportunity to review it.
EPA understands that the TSD and
EPA recognizes that some commenters may view the timeframe for compliance under EPA's framework for BART Alternatives as an environmental justice issue. We note that the Navajo Nation and other Tribes expressed concern with the potential economic impacts of this rulemaking. The flexibility we provided has allowed for a balance between these considerations.
We further note that the LNB/SOFA credit, an important component of the timeframe under our “better than BART” framework, was based on real, actual emission reductions beginning in 2009 that were voluntary and not required by any rule or regulation. We also note that the TWG Alternative, which calls for closure of one unit in 2019 (or equivalent curtailment), will result not only in reductions of NO
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this action is a rule of particular applicability. This rule finalizes a source-specific FIP for a single generating source.
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 7, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).
Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
Title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401, et seq.
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(B) Alternative A2 applies if by December 31, 2019, one of the following occurs:
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(C) Alternative A3 applies if by December 31, 2019, one of the following occurs:
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(D) Alternative B applies if, by December 31, 2019, if one of the following occurs:
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(iii) By December 22, 2044, the owner/operator shall permanently cease conventional coal-fired electricity generation by all coal-fired Units at NGS.
(4)
(ii) Beginning in 2015, and annually thereafter until the earlier of December 22, 2044 or the date on which the owner/operator ceases conventional coal-fired electricity generation by all coal-fired Units at NGS, the owner/operator must report to EPA, the annual heat input, the annual emissions of sulfur dioxide, carbon dioxide, and NO
(iii) No later than December 31, 2020, the owner/operator must submit an application to revise its existing Part 71 Operating Permit to incorporate the requirements and emission limits of the applicable Alternative to BART under paragraph (j)(3) of this section. The Part 71 Operating Permit for NGS must incorporate practically enforceable limits for NO
(iv) In addition to the requirements of paragraphs (j)(4)(i), (ii) and (iii) of this section, if Alternative B applies, the owner/operator must submit annual Emission Reduction Plans to the Regional Administrator.
(A) No later than December 31, 2019 and annually thereafter through December 31, 2028, the owner/operator must submit an Emission Reduction Plan containing anticipated year-by-year emissions from Units 1, 2, and 3 covering the period from 2020 to 2029 that will assure that the operation of NGS will result in emissions of NO
(B) No later than December 31, 2029 and annually thereafter, the owner/operator shall submit an Emission Reduction Plan containing year-by-year emissions covering the period from January 1, 2030 to December 31, 2044 that will assure that the operation of NGS will result in emissions of NO
(C) The requirement to submit annual Emission Reduction Plans beginning no later than December 31, 2019, shall be incorporated into the Part 71 Operating Permit for NGS as federally enforceable permit conditions.
(5)
(ii) The owner/operator of each unit shall comply with the quality assurance procedures for CEMS found in 40 CFR part 75. In addition to these Part 75 requirements, relative accuracy test audits shall be calculated for both the NO
(6)
(ii) If a valid NO
(7)
(i) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results as required by Part 75 and as necessary to calculate each units pounds of NO
(ii) Each Boiler Operating Day rolling average emission rate for NO
(iii) Each unit's 30 Boiler Operating Day pounds of NO
(iv) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR part 75.
(v) Records of the relative accuracy calculation of the NO
(vi) Any other records required by 40 CFR part 75.
(8)
(i) The owner/operator must notify EPA within two weeks after completion of installation of NO
(ii) Within 30 days after the first applicable compliance date in paragraph (j)(3) of this section and within 30 days of every second calendar quarter thereafter (i.e., semi-annually), the owner/operator must submit a report that lists for each calendar day, calculated in accordance with paragraph (j)(6) of this section, total lb of NO
(9)
(10)
(11)
Executive Office of the President, Office of Management and Budget.
Notice Regarding Implementation of the Factoryless Goods Producer Classification in NAICS 2017.
Under the authority of the Budget and Accounting Procedures Act of 1950 (31 U.S.C. 1104(d)) and the Paperwork Reduction Act of 1995 (44 U.S.C. 3504(e)), the Office of Management and Budget (OMB) is announcing that the Factoryless Goods Producer (FGP) recommendation will not be implemented in the 2017 NAICS revision. The August 17, 2011,
Correspondence concerning this announcement may be sent to: Paul Bugg, 10201 New Executive Office Building, Washington, DC; Telephone: 202-395-3095; fax: 202-395-7245; email:
Paul Bugg, 10201 New Executive Office Building, Washington, DC; Telephone: 202-395-3095; fax: 202-395-7245; email:
Mexico's
For these three countries, NAICS provides a consistent hierarchical framework for the collection, tabulation, presentation, and analysis of industry statistics used by government policy analysts, by academics and researchers, by the business community, and by the public. Under NAICS, each domestic establishment receives a six-digit code that is generally comparable across the three countries at the five digit level. The sixth digit is reserved for country-specific detail that can vary across the three countries. Thus, under
OMB appreciates the time and effort that went into preparing these responses and offers thanks to all who submitted comments and participated in the consultation. The comments will help inform the ECPC as it works to find a solution to identifying and classifying FGPs consistently. The ECPC, through OMB, will address the comments submitted as part of the regular NAICS review process to develop a full set of recommendations for the 2017 NAICS revision. However, continuing research on agencies' ability to identify FGPs through survey questions combined with the large number of comments on this topic indicate that agencies need an opportunity to perform additional research, testing, and evaluation on FGPs without the burden of simultaneously implementing an unsatisfactory approach to the 2012 NAICS FGP decision for 2017 reference year data. This announcement to remove the requirement for agencies to implement the FGP recommendation by 2017 is designed to provide agencies with that opportunity.
The FGP proposal resulted from the fact that there was no guidance on
As indicated in the May 22, 2014,
Office of Federal Contract Compliance Programs, Labor.
Notice of proposed rulemaking.
The Office of Federal Contract Compliance Programs (OFCCP) proposes to amend one of its implementing regulations for Executive Order 11246, Equal Employment Opportunity, which sets forth the reporting obligations of Federal contractors and subcontractors. This notice of proposed rulemaking (NPRM) would amend the regulation by adding a requirement that certain Federal contractors and subcontractors supplement their Employer Information Report (EEO-1 Report) with summary information on compensation paid to employees, as contained in the Form W-2 Wage and Tax Statement (W-2) forms, by sex, race, ethnicity, and specified job categories, as well as other relevant data points such as hours worked, and the number of employees. This summary compensation data collection from Federal contractors and subcontractors by OFCCP is a critical tool for eradicating compensation discrimination. It would enable OFCCP to direct its enforcement resources toward entities for which reported data suggest potential pay violations, and not toward entities for which there is no evidence of potential pay violations. It would also enhance two enforcement objectives: Greater voluntary compliance; and greater deterrence of noncompliant behaviors by contractors and subcontractors. OFCCP seeks to achieve these dual and complementary objectives while minimizing, to the extent feasible, the compliance burden borne by Federal contractors and subcontractors.
To be assured of consideration, comments must be received on or before November 6, 2014.
You may submit comments, identified by RIN number 1250-AA03, by any of the following methods:
•
•
•
Debra A. Carr, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW., Room C-3325, Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-1337 (TTY).
The OFCCP proposes to amend the regulation found at 41 CFR 60-1.7 by adding a requirement that certain Federal contractors and subcontractors (hereinafter “contractors”) submit additional, readily available data in a new “Equal Pay Report.” This report would require the submission of summary data on employee compensation by sex, race, ethnicity, specified job categories, and other relevant data points such as hours worked, and the number of employees. The OFCCP believes that collecting and strategically using this summary data would have a significant deterrent effect and impact on OFCCP's enforcement program. Voluntary compliance and self-assessments by Federal contractors are critical components of this NPRM given the vast number of establishments subject to OFCCP's jurisdiction in comparison to the agency's modest personnel and other resources. The agency estimates that, based solely on 2012 EEO-1 Report data, more than 116,000 establishments are subject to its jurisdiction because they have at least 50 employees and a contract or subcontract in the amount of $50,000 or more. However, this NPRM proposes to cover a subset of these establishments. Informed by the aggregate industry-based data that OFCCP will make available to them, Federal contractors will have the opportunity to conduct meaningful self-assessments of their compensation practices and policies, and make any necessary pay adjustments or other compensation modifications prior to an OFCCP compliance evaluation. Specifically, this NPRM will enhance the quality and quantity of data OFCCP collects. This data, in addition to data collected from publicly available sources, such as the Bureau of Labor Statistics (BLS), are critical to developing a data-driven approach for identifying and focusing OFCCP's evaluations and resources on Federal contractors that have potentially discriminatory compensation differences when compared to an objective industry standard.
This NPRM reflects extensive stakeholder input collected prior to and during a 2011 Advance Notice of Proposed Rulemaking, specific criteria stated in a Presidential Memorandum issued on April 8, 2014, and additional stakeholder input collected during listening sessions held following the release of the Presidential Memorandum (the Memorandum).
Data collection and analysis of data are likely to serve as a disincentive for noncompliance, and are, therefore, effective deterrents. One recent report found that deterring violations before they occur is one part of an “overall enforcement policy.”
The disclosure of compensation data summarized at the industry level enables contractors and subcontractors to assess their compensation structure along with those of others in the same industry, and provide useful data to current and potential employees. Some of these employers will not want to be identified as having pay standards that are significantly lower or different from those of their industry peers, since this may encourage valuable employees to consider moving to other employers, or discourage applicants who see that higher paying jobs may be available elsewhere. Employers do not want to be known as one of the lowest paying members of their industry, and may voluntarily change their pay structure.
OFCCP, through this NPRM, seeks to imbed deterrence into its existing three-prong enforcement framework which consists of: (1) Conducting compliance evaluations and complaint investigations, and obtaining remedies for victims of discrimination; (2) Issuing policy, technical assistance, and subregulatory guidance that is legally sound and effective; and (3) Strategically developing relationships and sharing information with contractors and workers about their respective rights and legal obligations.
In order to integrate deterrence into the first of the three prongs, that is, its compliance evaluations process, OFCCP will collect and analyze contractor summary compensation data to establish objective industry standards for identifying potential discrimination in employee compensation.
Integration of deterrence into the second prong of OFCCP's enforcement policy comes through not only the proposals in this NPRM but also through OFCCP's ongoing commitment to providing the contractors' human resources (HR) and compliance officials with access to technical assistance materials and training that supports compliance with OFCCP's regulations. It has been OFCCP's experience that HR and compliance officials often drive compliance within an organization, as they are often the sponsor or champion for compliance within the company. As such, training them and supporting their compliance work is critically important to greater deterrence and voluntary compliance.
Finally, as to the third prong of OFCCP's enforcement framework, routinely sharing aggregate compensation data at the industry and/or labor market level with contractors should drive some additional portion of the contractor community to engage in voluntary self-assessments of their compensation practices and make needed corrections.
Consistent with this overall view of transparency, a 2010 study found that the Wage and Hour Division (WHD) of the U.S. Department of Labor could potentially increase its deterrence effects by being more transparent about its enforcement activities.
Yet another possible deterrence effect exists when OFCCP generally exercises its enforcement authority. When OFCCP finds and remedies violations during a scheduled compliance evaluation, because the contractor has not voluntarily changed its behavior, a preventive deterrent effect is the result. When OFCCP finds and remedies violations by contractors, they may be prohibited from, and thus prevented from, continuing their discriminatory practices. This enforcement approach is tantamount to “preventive” deterrence because the expectation is that at least some of these violators are prevented from continuing their unlawful conduct for some period.
Deterrence, unlike enforcement actions, is proactive in nature. As such, it can prevent jobs from being denied or lost, prevent workers from being unfairly compensated, and prevent individuals and their families from being placed in financial jeopardy due to employment discrimination. This NPRM is one means of enabling OFCCP to collect the data it needs to strategically prioritize compliance evaluations, and share that data, as appropriate, to support voluntary changes in contractor employment behaviors.
Originally issued in 1965, and amended several times in the intervening years, the purpose of Executive Order 11246 is twofold. First, the Executive Order prohibits employment discrimination on the basis of race, color, religion, sex, sexual orientation, and gender identity and national origin against employees and applicants by covered Federal contractors and subcontractors.
The requirements in Executive Order 11246 generally apply to any business or organization that: (1) Holds a single Federal contract, subcontract, or Federally assisted construction contract in excess of $10,000; (2) has Federal contracts or subcontracts with a combined total exceeding $10,000 in any 12-month period; or (3) holds Government bills of lading, serves as a depository of Federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount. Pursuant to the Executive Order, the award of a Federal contract comes with a number of responsibilities. Section 202 of the Executive Order requires every contractor to agree to: (1) Comply with all provisions of the Executive Order and the rules, regulations, and relevant orders of the Secretary of Labor; (2) provide all information and reports required by the Executive Order and implementing rules, regulations, and orders; and (3) provide access to its books, records, and accounts to the Secretary of Labor for the purpose of investigation to ascertain compliance with such rules, regulations, and orders. Under Section 203 of the Executive Order, the Secretary of Labor has broad authority to require compliance reports from contractors that contain such information regarding their practices, employment policies, programs, and employment statistics, in such form as the Secretary of Labor may prescribe. Likewise, the implementing regulations at 41 CFR 60-1.12(a) provide that the Director of OFCCP may require a contractor to keep employment or other records, including records on compensation and other rates of pay by race and gender, and must supply this information to OFCCP upon request. A contractor in violation of the Executive Order may have its contracts canceled, suspended, terminated, or may be subject to debarment.
The regulation at 41 CFR 60-1.7 sets forth the existing requirement that certain Federal contractors and subcontractors submit an annual Employer Information Report EEO-1 (EEO-1 Report), a standard Federal report on workforce demographics that is jointly promulgated by OFCCP and the Equal Employment Opportunity Commission (EEOC). The NPRM proposes the following major provisions:
• Amending the regulation at 41 CFR 60-1.7 by adding a requirement that employers who file EEO-1 Reports, have more than 100 employees, and a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications, submit two columns of additional information to the EEO-1 Report in a new Equal Pay Report to OFCCP.
• Requiring that covered Federal contractors and subcontractors electronically submit the proposed Equal Pay Report using a web-based data tool. OFCCP will establish a process for requesting an exemption to the electronic filing requirement.
• Requiring contract bidders to make a representation related to whether they currently hold a Federal contract or subcontract that requires them to file the proposed Equal Pay Report and, if so, whether they filed the report for the most recent reporting period.
• Extending existing agency sanctions to Federal contractors and subcontractors for the failure to file timely, complete, and accurate Equal Pay Reports, and the representation of compliance.
OFCCP is also interested in amending the regulation to 41 CFR 60-1.7 by adding a requirement that employers who file the Department of Education's Integrated Postsecondary Education Data System (IPEDS) report, have more than 100 employees, and have a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications, also file OFCCP's proposed Equal Pay Report. OFCCP is particularly interested in comments related to the need to collect additional compensation data from postsecondary academic institutions in light of the scope of their existing reporting obligations with the U.S. Department of Education. Consequently, information relevant to the feasibility of
OFCCP proposes sharing summary industry standards information with the public annually, as soon as practicable. Moreover, OFCCP plans to provide training and technical assistance to contractors that explain the standards and how contractors could use them to conduct their self-assessments. This information could reflect the industry and/or labor market, or some other relevant aggregate grouping of the data received by OFCCP.
The table below displays the estimated costs associated with the implementation of this NPRM. OFCCP estimates that the proposed cost of the NPRM is $684 per contractor establishment or $2,176 per contractor company.
Note that the first-year cost of the proposed rule is $46,250,189, which includes the one-time burden, annual recurring, and annual operations and maintenance costs.The goals of the proposed rule are:
• Increasing contractor self-assessment of compensation policies and practices, and expanding voluntary compliance with OFCCP's regulations, to advance OFCCP's mission of ensuring nondiscrimination in employment and decreasing the pay gap between males and females and between people on the basis of race.
• Providing probative compliance information, including data on industry and/or labor market standards, to promote industry-wide deterrence within the Federal contractor community and lead to modified compliance behavior in the compensation arena.
• Making data-driven enforcement decisions that support the efficient use of limited enforcement resources. OFCCP will strategically deploy its resources to focus on conducting compliance evaluations of contractors that are more likely to have compensation discrimination violations.
• Shifting, to the maximum extent possible, compliance evaluation costs from contractors that are likely to be in compliance with OFCCP's existing regulations prohibiting pay discrimination to contractors that are more likely not to be in compliance.
• Contributing to the stability of working Americans by helping minimize the pay gap and promoting broad societal policy objectives of nondiscrimination and equal pay. Providing workers victimized by discrimination the opportunity to obtain the best possible remedies and relief. OFCCP anticipates increasing its capacity to identify more violations and obtain prompt remedies through a better-informed scheduling process for the estimated 4,000 compliance evaluations it conducts annually.
Social science research also suggests that anti-discrimination law has broad social benefits. Workers who are capable of successfully enforcing their rights and obtaining redress experience these benefits, as do the workforce and the country's economy as a whole. In general, discrimination is incompatible with an efficient labor market. Discrimination interferes with the ability of workers to find jobs that match their skills and abilities and to secure wages that are consistent with a well-functioning marketplace.
Consequently, effective anti-discrimination enforcement can promote economic efficiency and growth. For example, a number of scholars have documented the benefits of the civil rights movement and the adoption of Title VII of the Civil Rights Act of 1964 on the economic prospects of workers and the larger economy.
The OFCCP is a civil rights and worker protection agency that enforces one Executive Order and two laws that prohibit employment discrimination and require affirmative action by companies doing business with the Federal Government.
Although laws protecting workers from pay discrimination have been in effect for more than 50 years, pay discrimination still exists. Pay discrimination is a real problem that continues to plague American working families. For example, looking at annual earnings reveals large gaps, where women working full-time earn approximately 77 cents on the dollar compared with men.
Research also reveals a wage gap amongst various racial groups. At the end of 2013, median weekly earnings for African-American men working at full-time jobs were $646 per week, only 72.1 percent of the median for white men ($896).
For Hispanic men, the wage gap is approximately 67 cents when compared to non-Hispanic white men.
The wage gap is significantly greater for many women of color. BLS data reveals that African-American women make approximately 68 cents, Latinas make approximately 59 cents, and Asian-American women make approximately 87 cents for every dollar earned by a non-Hispanic white man.
Regardless of how it is measured, over time, the significance of the differences in compensation for women and men becomes increasingly evident. According to one analysis by the Department of Labor, a typical 25-year-old woman working full-time would have already earned $5,000 less over the course of her working career than a typical 25-year old man.
Although occupational segregation is an important contributing factor to the gender pay gap,
While occupational differences explain some of the gender wage gap, discrimination and other barriers play a role.
Fewer dollars for workers and their families means a real loss of economic security, at a time when no family can afford to be earning less. Historically, data show that women are generally poorer than men. The poverty rates for unmarried female head of households with children are significantly higher than most poverty rates. Looking as far back as 1966, poverty rates for unmarried female head of households with children have been consistently two to three times higher than the
As research suggests, because discrimination is one of the factors contributing to the pay gap, improving the ability of Federal civil rights enforcement agencies such as OFCCP to identify and remedy pay discrimination is a critical element of a broader strategy for closing that gap—particularly in light of its substantial social cost. To advance that goal, in 2010, President Obama convened the National Equal Pay Task Force (the Task Force), which includes the Department of Labor, Department of Justice, the EEOC and the Office of Personnel Management, to provide a coordinated Federal response to pay discrimination. In its “Recommendations and Action Plan,” the Task Force developed a number of recommendations to address the persistent challenges to enforcement of Federal laws prohibiting compensation discrimination.
In addition to deterring unlawful behavior and incentivizing the adoption of compensation policies and procedures, better and more comprehensive compensation data can substantially improve enforcement of anti-pay discrimination laws. Indeed, a key Task Force recommendation is that the Federal Government collect data on the private workforce to better understand the scope of the pay gap, and focus enforcement resources on employers that are more likely to be out of compliance with Federal laws prohibiting wage discrimination. The Task Force noted that the “lack of data makes identifying wage discrimination difficult and undercuts enforcement efforts.”
Identifying and remedying compensation discrimination has been integral to OFCCP's mission for many years. OFCCP primarily enforces contractors' compliance with Executive Order 11246, including its prohibition on compensation discrimination, by conducting compliance evaluations of Federal contractors and subcontractors each year. These compliance evaluations analyze workforce data, employment practices, and records that OFCCP requires contractors and subcontractors to keep and produce upon request. These recordkeeping requirements specifically include information on compensation such as wages, salaries, commissions, and bonuses.
In searching for pay discrimination violations, OFCCP is limited to the data provided by the nearly 4,000 contractors and subcontractors it evaluates annually. This cohort is a small fraction of the more than 116,000 establishments that are estimated to fall under OFCCP's jurisdiction.
Despite the labor-intensive development of the scheduling list, OFCCP is currently unable to determine the true likelihood of compliance with OFCCP's regulations, including the prohibition against compensation discrimination found in Executive Order 11246. The Equal Pay Report data will allow OFCCP to assess a broad array of compensation-related employment practices, such as differences in promotion, initial placement or job assignment, and pay. The pay practices would not just include salary but incentives or other earnings opportunities. OFCCP can use the representation data in EEO-1 reports to identify potential hiring or
There are voluntary compliance and enforcement benefits associated with collecting more data. For example, contractors could benefit from the potential cost savings. OFCCP currently estimates that a significant proportion of the establishments it evaluates annually are compliant with the nondiscrimination requirements of Executive Order 11246. Thus, some contractors and subcontractors may incur less burden hours and costs in preparing for and undergoing evaluations. If a contractor's compensation differences are within an acceptable range, when compared to the industry standard, OFCCP would not likely prioritize it for a compliance evaluation. Developing a data-driven scheduling process for compliance evaluations is more efficient and will likely reduce compliance costs for some contractors.
The collection of the data will allow OFCCP to conduct analysis and establish objective industry standards that it will make available to contractors and others. Contractors are encouraged to use this information to conduct self-assessments by comparing their pay to the industry standards, identifying indicators of potential issues, examining their pay practices to determine if problems or potential violations actually exists, and taking voluntarily steps to make needed corrections. Moreover, OFCCP will offer training and other assistance on the use of the standards for self-assessments.
Contractors that are required to file EEO-1 reports, have more than 100 employees, have a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications, would file the Equal Pay Report. This generally includes:
• Private employers that:
○ Are prime contractors or first tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more;
○ serve as a depository of Government funds in any amount, or
○ is a financial institution that is an issuing and paying agent for U.S. Savings Bonds and Notes.
• Private employers that are not covered by the exemption under 41 CFR 60-1.5.
Single establishment employers file one EEO-1 Report for their single location. Multi-establishment employers with several locations file additional EEO-1 reports; one for the headquarters location, a report for each establishment with more than 50 employees, and a report for each establishment with fewer than 50 employees or an Establishment List providing the name and locations of each of these locations with fewer than 50 employees. However, EEO-1 filers with 100 or fewer employees are exempt from the OFCCP filing requirement. Multi-establishment employers must also file a Consolidated Report that consolidates all of the employment data submitted for their various establishments and their headquarters. OFCCP evaluates contractors by establishment. This NPRM would require that each establishment, including the headquarters location, file a single Equal Pay Report. Unlike in EEO-1 reporting, no headquarters Consolidated Report is required.
OFCCP is considering requiring institutions of higher education to file the Equal Pay Report if they are required to file IPEDS reports with the Department of Education, have a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications, and have more than 100 employees.
OFCCP's proposed report harmonizes in many ways with the format of the EEO-1 Report. It also proposes to rely on existing IRS compensation reporting by using W-2 earnings as the source of compensation data. OFCCP believes that the Federal contractors and subcontractors that are required to submit the IPEDS reports are still highly likely to have the W-2 earnings information, business processes and information technology (IT) systems in place that could store and generate the specific information OFCCP is proposing to obtain through the Equal Pay Report. Accordingly, OFCCP is interested in comments on the following issues concerning a potential reporting requirement for postsecondary academic institutions:
• The proposal in the NPRM and any alternatives, including the feasibility of using a single Equal Pay Report format for all covered Federal contractors and how that could be implemented should postsecondary academic institutions (i.e., IPEDS filers meeting the proposed Equal Pay Report thresholds) be covered by the Equal Pay Report requirements,
• the cost and benefits, both qualitative and quantitative, of covering postsecondary academic institutions but deferring their reporting obligation for some period of time, and the estimated cost to these institutions for reporting their data using EEO-1 job categories, and
• the estimated number of IPEDS filers that could be covered by the proposed Equal Pay Report.
Using the Equal Pay Report, OFCCP proposes to collect three pieces of information related to calculating aggregate W-2 earnings for each group of workers within the EEO-1 job categories:
• The total number of workers within a specific EEO-1 job category by race, ethnicity and sex;
• total W-2 earnings defined as the total individual W-2 earnings for all workers in the job category by race, ethnicity, and sex; and
• total hours worked defined as the total number of hours worked for all workers in the job category by race, ethnicity and sex.
This Equal Pay Report itself would annually require the submission of summary employee compensation data, by sex, race, ethnicity, and specified job categories from Federal contractors, as well as other relevant data points that would include hours worked and number of employees. In an effort to harmonize the Equal Pay Report with the existing EEO-1 reporting requirement, the Equal Pay Report includes the same workforce demographic data (e.g., the identical seven race and ethnicity categories, sex, and company identification information),
There are, however, some differences between the EEO-1 and the proposed Equal Pay Report. The EEO-1 uses a “snapshot” approach that requires employers to include in their report only those employees from one pay period between the months of July and September of the current survey year. The proposed Equal Pay Report, however, covers a full calendar year from January 1 through December 31. The Equal Pay Report includes summary compensation data using total W-2 earnings paid as of the end of each calendar year for each worker who was included in the contractor's EEO-1 report for that year. The use of summary W-2 earnings data for the calendar year aligns with the period covered under a contractor's W-2 filings. Workers no longer employed as of December 31 would still be included in the report. The EEO-1 Report does not collect summary or individual employee compensation data. While OFCCP proposes a report filing window of January 1 to March 31 of the following year in order to obtain W-2 compensation data for the full year, the EEO-1 Report requires filing and certification by September 30.
• The January 1 through December 31 reporting period, the March 31 filing deadline, and any additional cost resulting from these dates not aligning with the EEO-1 reporting dates, and
• the amount of additional cost contractors could incur from the proposed requirement for contractors to include on their Equal Pay Report the employees reported on their EEO-1 Report.
Collecting summary data from contractors as described here should contribute to minimizing the burden and cost of reporting incurred by Federal contractors and subcontractors. OFCCP is also seeking to reduce the burden associated with retrieving that data by using the same definition of compensation that is used to reportW-2 earnings to the Internal Revenue Service (IRS). Thus, the expectation is that Federal contractors will not incur burden and cost related to collecting and producing new or different compensation data.
Contractors would be required to keep their Equal Pay Reports for a period of not less than two years from the date of the making of the report. However, if the contractor has fewer than 150 employees or does not have a contract of at least $150,000, this retention period is one year.
They would also have to make a representation related to whether they are currently a Federal contractor or subcontractor, and whether that they filed the report with OFCCP from the most recent reporting period when bidding on a Federal contract or subcontract. OFCCP proposes to apply sanctions in 60-1.4(a) and (b) and 60-1.27 to a failure to file a timely, complete and accurate Equal Pay Report and make the appropriate representations.
The Freedom of Information Act, to the maximum extent that the information is exempt, would protect the information reported by contractors, including the summary compensation data. It is the practice of OFCCP not to release contractor data where (1) The contractor is still in business, and (2) the contractor indicates, and through the Department of Labor's review process it is determined, that the data are confidential and sensitive and that the release of data would subject the contractor to commercial harm. In the NPRM, OFCCP proposes creating the authority to publish aggregate information based on compensation data collected from the Equal Pay Report, such as ranges or averages by industry, labor market, or other groupings, but only in such a way as not to reveal any particular establishment's or individual employee's data. OFCCP proposes that it would analyze the information collected on the Equal Pay Reports and, along with other available data, develop objective industry-based standards for compensation differences, and prioritize contractors and subcontractors for evaluation whose summary data show discrepancies that indicate possible compensation violations.
Bidders on Federal contracts and subcontracts will be required to state whether they currently have a Federal
The NPRM also proposes making technical amendments to § 60-1.7, as explained in the Section-by-Section Analysis. Those amendments would conform other related recordkeeping provisions in § 60-1.7 to the proposed new reporting requirement, as well as update them to reflect current agency practice.
In addition, to ensure that the costs and burdens of this rule are minimized to the extent feasible, OFCCP requests public comment on an alternative reporting framework. This alternative would utilize a single report that would fulfill contractors' reporting obligations under this rule and the EEO-1. This single report would collect all the information currently included on the EEO-1, as well as summary compensation information and other appropriate data elements for the purposes of meeting the objectives of this rule. OFCCP would coordinate with EEOC on how the single report could be collected, which agency would collect the single report, and the timing of the collection. OFCCP invites public comment on:
• The feasibility of this alternative framework,
• the possible content and design of the single report, and how the report could meet the needs of both OFCCP and EEOC,
• the degree to which using a single report could both minimize burden and effectively meet the objectives of this rule, and
• the possible administrative, procurement and other modifications needed to implement a single report alternative.
OFCCP proposes using the data it collects in the Equal Pay Report, in conjunction with other information available through existing resources such as labor market survey data, to generate reliable and objective industry standards for assessing individual contractor compensation data and conducting contractor self-assessments. After receiving the Equal Pay Reports from covered contractors, OFCCP proposes to aggregate each contractor's summary data with those of peer employers by industry to construct the objective industry standards. Labor market data would also be used to create the objective industry standard. As proposed, these standards would include the total number of employees in each EEO-1 occupational category from all the Equal Pay Reports submitted by contractors in a particular industry group, as well as the industry group's total W-2 pay and total hours worked, and the mean hourly wage calculated as total W-2 pay divided by total hours worked. This information would be determined separately by race and gender. OFCCP proposes to compare each contractor's summary statistics to the relevant objective industry standard. OFCCP is more likely to prioritize contractors for compliance evaluations with pay gaps that are greater than the standard.
Because OFCCP anticipates that Equal Pay Report data may have fewer observations in certain industries or job categories, and because it is self-reported data on contractors only, considering information available in these other data sources may inform and improve the analysis of reported contractor compensation data by providing a larger economic context. OFCCP is interested in related comments such as:
• The use objective industry standards and using contractor pay gaps that are greater than the standards to focus or prioritize contractors for compliance evaluations,
• the feasibility of using external data along with the Equal Pay Report data to develop the objective industry standards,
• the potential benefits and limitations of using supplementary external data sets for this purpose, and
• the existence of other potentially useful supplemental data sources, in addition to ACS and BLS data.
Using just Equal Pay Report data alone has the benefit of focusing specifically on the pay gap among Federal contractors, which may or may not be different from employers generally. It is simpler to use Equal Pay Report data alone and the calculations would be easier to understand. However, contractors operate in a larger labor market and industry environment, and using supplemental data sources allows consideration of these broader trends. The potential benefits of using supplemental general labor market data is that they are typically based on well-understood samples from large populations of firms and are developed in a general survey context. This makes the data less prone to non-response bias that may occur when collecting pay data to enforce an anti-discrimination legal mandate. In addition, by using this data, OFCCP can likely determine the extent to which the pay practices of Federal contractors demonstrate important differences when compared to the pay practices of all employers generally. OFCCP cannot glean this information when only looking at Equal Pay Report data.
Incorporating supplemental data sources supports OFCCP's ability to refine its contractor pay gap standards to use for comparison purposes.
OFCCP anticipates that the Equal Pay Reports for some contractors will contain sparse cells because certain combinations of job category and demographics will have only a few workers. Certain EEO-1 job category
OFCCP plans to address these potential issues when calculating measures. For example, OFCCP may calculate and report national metrics for some industries, or metrics by region instead of MSA or state. In addition to aggregating where appropriate and necessary, OFCCP would likely exclude extremely sparse cells from the metric calculation altogether due to reliability and validity concerns. As a result, for certain job categories in certain industry groups, the agency may not report a metric where the data are insufficient.
For purposes of selecting contractors for compliance evaluations using the Equal Pay Report data, OFCCP proposes to focus primarily on a strategy that ranks contractors against the objective standards, and then prioritizes compliance evaluations of those contractors and subcontractors who have larger race or gender pay gaps than what is typically reported in the industry as measured by the objective industry standard described in the section above. Those contractors and subcontractors who report patterns with the greatest deviation from the applicable standard would have the highest likelihood of selection for further investigation under this approach. Under its usual compliance evaluation procedures, the agency would then examine their detailed compensation data and practices to make a determination about the contractors' actual compliance. OFCCP specifically proposes comparing average pay differences across contractors who are in the same industry within EEO-1 job categories. While EEO-1 categories are far too broad to identify pay discrimination at the individual employer level with precision, they are practical and useful for setting enforcement priorities by comparing across employers based on summary data. As explained further in this section, the agency also plans to consider how other data sources may provide information on firm or employee characteristics that would help refine and improve OFCCP's ability to use Equal Pay Report data to rank contractors and prioritize compliance evaluations.
Under the approach proposed by OFCCP, using an objective industry standard, the goal is not simply to identify absolute differences in pay, which may be explained in any particular case by a variety of legitimate factors. Rather, it is to identify contractors with pay differences that substantially depart from the objective industry standard, reducing the likelihood that legitimate factors explain all of the difference. The most straightforward approach to analyzing earnings data would be to simply compare the earnings of, for example, female and male professional employees within a reporting establishment and select those with the largest differences in average compensation for compliance evaluations. Thus, an establishment where female professionals earn on average 75 percent of what male professionals earn may be reviewed, and those where women earned 90 percent of what men earned may not. This procedure might be labeled a “simple ratio” analysis. In contrast, setting an industry standard using the kind of metrics described above compares the wage ratios for men and women in each establishment to the typical ratio within an industry group or other peer establishments. Under this approach, an establishment where the average female professional earns 75 percent as much as her male co-worker might not be selected for an OFCCP compliance evaluation if the ratios for women in similar firms average 60 percent. These basic principles also would apply when analyzing race or ethnicity-based differences.
By using an objective industry standard as the measure against which a contractor's pay gap is assessed, OFCCP should be able to account for some of the potential effects of employee qualifications and other potentially nondiscriminatory explanations for observed wage gaps. For example, if female professionals as a group are favoring particular types of jobs, or coming to particular jobs with more education or less full-time work experience on average than similar men, those differences should be reasonably similar among peer employers within the same industry and/or labor market. They might result in an overall average gender-based pay difference within the EEO-1 category of “professionals” for all employers in that peer group.
Although EEO-1 categories involve a mix of jobs and workers, the average differences in pay by race and sex across employers are still valuable because the Equal Pay Report will generate similar and comparable data by peer employers. With rare exceptions, OFCCP anticipates that systematic gender- or race-based differences will merit further investigation. Using a contractor's Equal Pay Report data against the objective industry standard further focuses these differences to contractors most worthy of further investigation and will inform the development of OFCCP's scheduling list.
For the group of contractors scheduled for a compliance evaluation, OFCCP would then conduct a desk audit of the contractor's data and records, and may make a request for more detailed data to evaluate the precise mix of jobs, workers and pay practices and draw an accurate conclusion about potential violations. That a contractor departs from the metric or has an absolute pay gap of a particular size is not sufficient evidence to find a pay discrimination violation. Equal Pay Report data would only be a basis to select contractors for a deeper assessment of potential discrimination in their compensation systems and practices based on the pay disparities observed in their reported data.
The agency also considered collecting information that would allow for calculation of variance. Variance is useful because it takes into account cell size (i.e., how many individuals are used in the calculation of the mean for a group) as well as the spread or differences in salary data among the persons in the group. However, providing enough information to calculate a variance would go beyond the total number of employees and total W-2 earnings and hours worked by group, and would increase the burden by requiring contractors and subcontractors to calculate and report additional metrics from their individual level data. The public is welcome to comment on these issues and approaches.
OFCCP plans to share information on industry standards publicly annually, as soon as practicable. OFCCP would post the standards on the agency's Web site. Training courses and technical assistance materials will be available in the form of technical assistance guides, web-based training courses, frequently asked questions (FAQs), directives and other policy statements, and through OFCCP's Customer Service Unit
OFCCP seeks comment on this approach, including comments on:
• How contractors would use the objective industry standards that are based on aggregate compensation data to assess their compensation practices and/or disparities; and
• data challenges contractors could face.
In using Equal Pay Report data as part of its process for selecting contractors for review, OFCCP must address a number of important practical and operational considerations such as resource constraints, data limitations, and enforcing contractor compliance with a broad range of employment practices and affirmative action requirements related to sex, race, ethnicity, disability, and status as a protected veteran. In requesting comment on the potential application and use of Equal Pay Report data to its overall scheduling practice, the agency retains the discretion to consider these comments in light of the agency's operational and enforcement priorities.
Consistent with the Fourth Amendment standard of neutrality, OFCCP will continue to apply a variety of criteria to its decisions to select contractors for review that go beyond the scope of the Equal Pay Report data.
Prior to developing this proposed rule, OFCCP solicited significant stakeholder input on the design and operation of a potential compensation data collection tool in an Advance Notice of Proposed Rulemaking (ANPRM) published on August 10, 2011 (76 FR 49398). The ANPRM stated OFCCP was considering requesting contractor compensation data, and asked for responses to fifteen specific questions about categories of data or potential applications of a data collection tool. The ANPRM also invited general comments on the design or approach of such a tool.
OFCCP received a substantial response to the ANPRM. Over 7,800 organizations and individuals submitted comments, highlighting the significance of the issue and the strong public interest in a potential compensation report. More than 7,000 comments were form letters organized by women's rights groups advocating generally for a broad data collection tool, and several hundred more were statements of general support for taking greater steps to address equal pay issues. In addition, a broad range of stakeholders submitted substantive comments on both OFCCP's overall concept of collecting contractor compensation data and on the specific issues raised in the ANPRM.
The comments submitted in response to the ANPRM raised significant issues. These include a set of overarching issues regarding the scope and purpose of data collection, the potential benefits to workers and contractors, potential burden and cost, and legal questions about OFCCP's authority to collect and use compensation data. In addition, the comments discussed specific points regarding who should provide data, what types of compensation data OFCCP should collect, what workers should be included and how to group them, what kinds of factors might be collected, and analytic techniques. Comments also addressed specific implementation issues, such as the agency's experience using the Equal Opportunity (EO) Survey, coordination with the EEOC and its research into compensation data collection, OFCCP's technical capacity to manage and analyze data, and IT and electronic filing requirements. OFCCP considered the ANPRM comments in developing this proposed rule. General comments about the proposal to collect compensation data are discussed below, while comments that address specific aspects of the proposed rule and the proposed Equal Pay Report are discussed in the Section-by-Section Analysis.
OFCCP is aware that the EEOC is still considering the collection of compensation data, and that EEOC previously convened an expert panel of the National Research Council (NRC) of the National Academies (NAS) to advise on its data collection from all covered employers. The NRC report made several recommendations, including that EEOC prepare a comprehensive plan for using earnings data and that an independent contractor conduct a pilot of the proposed data collection plan.
However, OFCCP looks forward to continuing to work with EEOC on pay data collection, including sharing information resulting from this proposed rule and engaging with EEOC on the results of its pilot project once it is completed. Informed in part by its examination of the NRC report, OFCCP studied its data collection process and identified a collection tool that it believes is suitable for its investigations and related policies and procedures. Indeed, OFCCP has addressed certain specific recommendations of that panel in its proposal and invited comments on other recommendations.
Finally, OFCCP intends to coordinate with EEOC on this data collection proposal. OFCCP has also consulted with the Department of Labor Agency Task Force members, including the Women's Bureau and the Wage and Hour Division, as well as the other Federal agencies on the Task Force.
Contractors and contractor organizations, human resource information systems vendors, and law firms and consultants who assist Federal contractors with compliance, provided a diverse set of perspectives on the issues in the ANPRM. Many raised concerns about the potential burden of OFCCP's efforts to collect certain types of compensation data and asked for more clarity about the purpose of the compensation data collection tool. They were also interested in how the tool supported OFCCP's mission. While some were adamantly opposed to a data collection of any type or scale, even stating that OFCCP should withdraw or abandon the proposal, others requested a more specific proposal in order to determine whether
Women's rights, civil rights and worker protection organizations strongly supported a compensation data collection tool. They generally encouraged the agency to collect data in as specific a form as possible. Many also encouraged OFCCP to go beyond the confines of compensation practices and collect data on hiring, promotion and termination such as OFCCP's former Equal Opportunity (EO) Survey. These commenters repeatedly highlighted the importance of closing the pay gap, and reiterated their concern that OFCCP has sufficient tools and data to support its worker protection mission. Noting the barriers that workers face in trying to obtain compensation in their workplace, OFCCP's role in identifying and addressing compensation discrimination is critical.
Many of the ANPRM comments focused on the scope of the data collection, and expressing several concerns. These included concerns that OFCCP would collect too much data, and that it would be too difficult, costly or time consuming to comply with the new reporting requirement, or that OFCCP would only collect minimal data that would not be useful or relevant to its goal of addressing pay discrimination. In general, most of these comments assumed that the purpose of a data collection effort was directed at identifying specific evidence of a pay discrimination violation—which would in fact require reporting at a highly detailed level. Instead, OFCCP proposes to use the information from the Equal Pay Report primarily as neutral criteria to prioritize how it selects contractors and subcontractors for a compliance evaluation. Under these circumstances, OFCCP can rely on summary data without needing more detailed reporting. After OFCCP selects contractors and subcontractors and schedules them for regular compliance evaluations, the agency would then request the additional more detailed data and information necessary to make a complete assessment of whether a violation exists.
Many contractors and their representatives raised specific concerns about the burden of collecting different categories of data. They noted that certain types of information, like factors that can explain compensation for individual workers, are not consistently maintained in human resources databases or even in electronic form at all. Some raised similar objections to providing data on certain elements of compensation. Many also expressed substantial concerns about the collection of individual employee pay records, in terms of both burden, and privacy and confidentiality issues. The agency has carefully considered all of these concerns in developing this proposal to minimize burden, focus on the most readily available information, and ensure the maximum potential confidentiality protection would apply to the information.
While some objections concerned OFCCP collecting too much data, others expressed alarm that OFCCP might collect too little data. Almost all of the commenters who addressed substantive issues stated that, for a compensation data collection tool to have any utility, it must collect information at a sufficiently detailed level. A large number of these commenters argued that comparing contractors was not a one-size-fits-all exercise, or that an apples-to-apples comparison could not be used given the many employee-level and firm level differences in practices and factors that affect compensation. Commenters raised concerns about aggregating elements of compensation, aggregating workers with different job titles, aggregating across locations, and many other efforts to compare compensation differences that might incorporate different potential causal mechanisms. Several commenters suggested that contractors be afforded discretion to determine what type of compensation information they would submit. Similarly, contractors wanted discretion to determine how they would aggregate or disaggregate information. Both comments aimed to reduce burden or to compensate for factors that may affect compensation data.
Notably, although contractors, their representatives, and the civil and workers' rights commenters often disagreed about aspects of this endeavor, they largely agreed on this point. Most commenters questioned whether OFCCP could get an accurate picture of pay discrimination without gathering information at a substantial level of detail. Nevertheless, while contractors and employer organizations viewed this problem as fatal to the endeavor, pointing out the complexity and burden of detailed data collection, advocates for workers viewed it as both necessary and feasible. OFCCP agrees that establishing pay discrimination can be complex and nuanced, and would potentially require substantial data and other information. That is why the agency is not seeking to establish pay discrimination violations through a general reporting requirement. Determinations as to whether a contractor has violated the Executive Order may depend not only on data analysis, including individual compensation records, but also on the specific facts of the case. In order for the proposed report on compensation to be an effective tool, the data collected must be uniform and easy to compare. Allowing contractors to choose the type of data to submit, or having contractors submit a large number of unique job groupings or compensation types or explanatory factors, would prevent the tool from serving its intended purpose.
Indeed, data collected under the proposed Equal Pay Report would not be the only data that OFCCP uses to evaluate contractor pay practices. If OFCCP selects a contractor for a compliance evaluation, or is investigating a complaint, that review would cover compensation data beyond what is in the contractor's Equal Pay Report and would involve a more specific and detailed data request. To assess individual contractor pay practices, OFCCP can request significant detail during compliance evaluations about types of compensation, detailed job groupings, factors affecting pay, and other specific information—including analyzing individual employee—level compensation records. OFCCP compensation investigations address a broad range of practices and categories of compensation, and generally cover a broad set of workers. Specific investigations may rely on more detailed job category information, and consider potential explanatory factors like experience or education. In general, OFCCP will conduct an analysis relevant to the contractor's specific industry, workforce and practices, based on the available facts and data. OFCCP will also investigate hiring, promotion and other employment practices. Any final determination of a violation will be based on a factually sound, analytically rigorous, and legally appropriate assessment. Summary data provides a preliminary look at potential compensation disparities, allowing OFCCP to conduct more detailed compliance evaluations much more efficiently.
Notably, one commenter who focused on OFCCP's goal of using the data collection to prioritize contractors for further evaluation also proposed that OFCCP collect data in a manner very similar to the Equal Pay Report framework proposed in this NPRM. This commenter, a law firm with substantial
A final set of issues regarding the overall scope and design of a compensation data collection tool concerned other ways OFCCP might use these data. For example, in the ANPRM, OFCCP discussed industry trend analysis and research. Some commenters suggested that such activities were outside of OFCCP's mission or authority. OFCCP does not intend to collect this data in order to conduct general compensation analysis unrelated to potential scheduling and enforcement, or simply to conduct its own independent peer-reviewed research. For example, OFCCP intends to analyze compensation data at an industry level in order to compare peer employers, and may use it to conduct research and analysis regarding how well certain aspects of the data used for scheduling ultimately predict the likelihood of violation. In addition, OFCCP intends to disclose certain aggregate data in order to assist contractors and subcontractors seeking to compare their own pay practices against others using the kind of industry-based standards described below. OFCCP does not contemplate any other specific use or release of this data.
A number of the commenters discussed how the collection and use of compensation data could confer broad benefits on workers and contractors. Many addressed the significant social problem of the pay gap, highlighting the importance that OFCCP have adequate enforcement tools to ensure that Federal contractors and subcontractors do not discriminate in pay.
In particular, women's and civil rights organizations noted that the prevalence of pay secrecy policies makes OFCCP's ability to obtain and review compensation data even more important. Workers find it extremely difficult to get information on pay practices or determine if they are being paid less because of pay discrimination. On April 8, 2014, President Obama issued Executive Order 13665, prohibiting discrimination by Federal contractors against employees and job applicants who inquire about, discuss, or disclose wages.
First, OFCCP agrees that collecting compensation data from Federal contractors can improve OFCCP's ability to enforce laws that prohibit contractor pay discrimination. This includes protecting contractor employees and their families from experiencing the negative effects of pay discrimination that can significantly reduce lifetime earnings, and improving OFCCP's ability to identify employees who were victims of discrimination and ensure they receive the remedies they deserve.
Second, because workers often do not know about pay discrimination and therefore cannot act to address it on their own behalf, improving OFCCP enforcement is important. Almost half of all workers report that they are prohibited from or strongly discouraged from discussing their own compensation with workplace colleagues.
A single OFCCP systemic investigation can resolve claims on behalf of a large group of workers. This benefits workers in the class directly, through back pay and reforms to pay practices that can improve pay equity over the long term. By collecting compensation data, OFCCP expects to increase both the number of pay discrimination cases it pursues and the proportion of systemic investigations. This would increase the credible deterrent effect of OFCCP enforcement—conferring benefits on workers at many other establishments by encouraging greater voluntary compliance.
Indeed, OFCCP expects that contractors and subcontractors are more likely to conduct the required self-analysis and correct existing problems if they regularly report their compensation data to OFCCP, and if they have access to the compliance assistance mechanisms OFCCP seeks to provide through Equal Pay Report data. In other words, OFCCP's impact is broader than only the establishments it investigates, but includes establishments it does not evaluate, ultimately further reducing the number of workers underpaid due to discrimination.
In 2000, OFCCP sought to collect data on compensation and other employment practices from Federal contractors through a mechanism known as the Equal Opportunity Survey.
OFCCP applied the lessons learned from the Equal Opportunity Survey, developed a plan for analyzing the data, and its compensation enforcement initiative will benefit from infrastructure improvements. In particular, OFCCP developed a careful plan for analyzing the data and using it to schedule compliance evaluations as described in this NPRM and related ICR. OFCCP also envisions periodically assessing its use of Equal Pay Report data to select contractors and subcontractors that are likely violators. Moreover, OFCCP is simplifying its approach by focusing on compensation data, unlike the Equal Opportunity Survey, which attempted to collect, track and use data on a variety of employment practices.
The EEOC is also exploring compensation data collection, through a
OFCCP provided information to EEOC's panel, and reviewed and analyzed the final report submitted to the EEOC.
First, this NPRM addresses the recommendation that Federal agencies state a clear plan for collection and use of pay data. Indeed, this document explains OFCCP's plan in detail, both in terms of the proposed scope of the data collection and the proposed use of data to engender greater voluntary compliance and to support improved efficiency in enforcement. The agency seeks comments on both of these points. This NPRM specifically tracks the panel's summary data option, which proposes collecting compensation data summarized by the EEO-1 job categories and demographic categories.
OFCCP's approach to data collection as described in this NPRM may be contrasted to the NRC's recommendations in two ways: (1) Defining the appropriate measure of compensation, and (2) the necessity of conducting an external formal pilot study of the data collection proposal prior to engaging in rulemaking. The NRC recommended using the definition of compensation found in the Occupational Employment Statistics Survey (OES) by BLS. The panel stated that this would be the easiest measure for employers to generate data out of current recordkeeping systems.
W-2 earnings account for a broad range of pay elements such as bonuses, overtime, awards, allowances and reimbursements, and commissions.
• The cost of providing W-2 earnings data, and
• the cost of providing compensation data using the OES definition.
The NRC report also recommends conducting an independent external pilot study on the Equal Pay Report to test the collection instrument and the use of the data.
The OFCCP notes that its prior experiences with the Equal Opportunity Survey have informed this NRPM. As a result of the 2000 Equal Opportunity Survey and recent stakeholder listening sessions, OFCCP is aware that requesting a broad array of information related to multiple contractor employment practices, as the Equal Opportunity Survey did, creates challenges for contractors and the agency. Consequently, the proposed Equal Pay Report is much narrower in scope. OFCCP requests public comment on:
• The advantages and disadvantages of piloting the Equal Pay Report,
• the extent its prior work with the Equal Opportunity Survey satisfies the purposes of a pilot, and,
• the design of a pilot of the Equal Pay Report.
The OFCCP, mindful of the NRC's recommendations directed to the EEOC on protecting the confidentiality of contractor pay data,
Finally, OFCCP addresses ANPRM comments on its coordination with the EEOC's process for considering compensation data collection. The OFCCP concluded that developing a general data collection requirement for Federal contractors only, as in the proposed rule, is unlikely to conflict with any specific data collection requirement that EEOC may decide to propose in the future from a broader group of employers, especially if EEOC is proposing using its existing EEO-1 Report format to collect its compensation data. Further, the Presidential Memorandum directed the proposal of a rule by DOL in August 2014 while the EEOC process is likely to take 18 to 24 months to complete once a contract is awarded for its pilot study. To the extent the EEOC ultimately determines it will collect compensation data from employers, the flexibility built into the proposed rule would allow OFCCP to modify its data collection as needed to harmonize it with any EEOC approach. Indeed, OFCCP's proposed Equal Pay Report and collection of compensation data from contractors is also likely to assist the EEOC in its determination of whether and how to collect compensation data from a broader set of employers in the future.
A few questions arose in the comments to the ANPRM regarding legal issues, mostly involving whether OFCCP may collect data and use it for analysis by industry, across multiple facilities, and/or to develop a subset of contractors and subcontractors to prioritize for compliance evaluations. These commenters assert, incorrectly, that the Fourth Amendment of the U.S. Constitution requires that OFCCP use a “random” selection procedure to identify the contractors and subcontractors that will undergo a compliance evaluation. While selection procedures are outside the scope of the proposed rule, they are part of the purpose for developing the proposed Equal Pay Report. For this reason, OFCCP would like to address in this preamble several comments that incorrectly state the requirements of the Fourth Amendment.
First, when OFCCP requests that a contractor submit data for OFCCP to review off-site during the desk audit stage of a compliance evaluation, the Fourth Amendment only requires that the disclosure sought be reasonable.
When OFCCP selects contractors and subcontractors for on-site compliance reviews, which are administrative searches for purposes of the Fourth Amendment, it need not do so “at random.” Rather, to satisfy the requirements of the Fourth Amendment, contractors and subcontractors may be selected for on-site compliance evaluation based on: (1) Specific evidence of an existing violation; (2) reasonable legislative or administrative standards that have been met with respect to that particular contractor; or (3) an administrative plan containing specific neutral criteria.
Finally, it is worth observing that identification as a potential violator based on data from the proposed Equal Pay Report would not itself result in any sanction or adverse action against the contractor; the contractor would be prioritized for a compliance evaluation, a procedure which any Federal contractor is already subject to under the Executive Order.
Existing § 60-1.7(a)(1) identifies contractors that are required to file the EEO-1 Report jointly promulgated by EEOC and OFCCP. Generally, § 60-1.7(a) requires a contractor to annually file an EEO-1 Report if the contractor has 50 employees and is either: (1) A prime contractor or first tier subcontractor with a contract or subcontract of $50,000 or more; or (2) serves as a fund depositor
Currently, § 60-1.7(a)(2) addresses the EEO-1 reporting obligations of a new contractor. Section 60-1.7(a)(2) provides that each “person” required to file an EEO-1 Report under § 60-1.7(a)(1) must do so within 30 days after receiving a contract or subcontract, unless the “person” submitted an EEO-1 Report within the previous 12 months. The report is filed with the contracting agency or administering agency. After the initial filing, the new contractor will file annually as required under § 60-1.7(a)(1). In addition, § 60-1.7(a)(2) identifies the Deputy Assistant Secretary as having the authority to change or extend the time for filing the report. OFCCP also proposes renumbering this paragraph to § 60-1.7(a)(3), deleting the references to “person” and replacing them with “prime contractor and subcontractor.” Consistent with this change, OFCCP is proposing deleting the words “to him” in relation to who is awarded a contract or subcontract. OFCCP is also proposing deleting the provision in § 60-1.7(a)(2) which states that subsequent reports shall be submitted at such intervals as the Deputy Assistant Secretary may require, in order to conform the
Existing § 60-1.7(b) addresses the certification requirements for bidders or prospective contractors. Each “bidder or prospective prime contractor and proposed subcontractor” must state, either in the bid or in writing at contract negotiations, whether it has an affirmative action program for each of its establishments, whether it held a contract or subcontract covered by the equal opportunity clause, and whether it filed all required reports, including the EEO-1 Report. The proposed rule would renumber § 60-1.7(b), making it a new § 60-1.7(d) and renaming the paragraph to “Requirements for bidders or prospective contractors—(1) Certification and representation of compliance with the requirements of Executive Order 11246 and its implementing regulations.” OFCCP proposes a new § 60-1.7(b) establishing a requirement that contractors and subcontractors complete and submit a report on employee compensation. The report proposed in § 60-1.7(b)(1), called the Equal Pay Report, requires contractors to provide summary data on the compensation paid employees by sex, race, ethnicity, specified job categories, and other relevant data points such as hours worked, and the number of employees. Contractors and subcontractors must submit this report in the format and manner required by OFCCP, and must retain a copy of the submitted report in accordance with the record retention provisions in § 60-1.12.
As proposed, contractors and subcontractors must report summary compensation data; no individual employee data is required. Reporting summary data limits the amount of information contractors and subcontractors must collect and report to the agency on a regular basis. While OFCCP will still consider individual employee compensation data during compliance evaluations or complaint investigations related to a contractor's pay practices, aggregate data is adequate for the purpose of establishing objective industry compensation standards against which individual contractors can be measured. While micro data, rather than aggregate data collected from all contractors, could arguably improve the identification of potential violators, collecting this data would likely create considerable cost and burden for contractors. Collecting aggregate data should also address concerns about the possible release of individual compensation data. OFCCP's decision to collect aggregate data reduces the likelihood that an individual employee's information would be inadvertently disclosed, and data reported in the aggregate makes it more difficult to identify the amount paid to any particular individual. Moreover, OFCCP does not intend to publicly release the underlying data contractors and subcontractors submit on their Equal Pay Reports. The agency will protect the confidentiality of data submitted through the Equal Pay Report to the maximum extent permitted by law, and plans to design a web-based portal for reporting and maintaining compensation information that conforms with applicable government IT security standards. Finally, on the issues of confidentiality and security, the information will be accessible to a small group of agency employees who need to know the information, and the data will not be widely circulated. These measures should reasonably ensure the security and confidentiality of the aggregate data.
The proposed rule collects only information on compensation, and not any other employment practices. This distinguishes it from the former Equal Opportunity Survey. In the agency's view, information on other employment practices adds complexity without necessarily conferring sufficient benefit. To the extent differences in promotions, hiring into higher paying jobs, or other practices contribute to race or gender-based pay disparities, examining average pay differences can help identify those effects. One common way to identify discriminatory promotion patterns is by first observing underlying compensation differences across jobs, then testing to see if discrimination in promotion rates explains the lower earnings. Further, while OFCCP has identified categories of widely available and comparable data sources relevant to analyzing compensation, the agency has not identified analogous data sources that contractors and subcontractors generally maintain on other employment practices in simple, comparable, externally verifiable formats. OFCCP will continue its careful review of information on hiring, promotion, termination and other employment practices through its existing compliance evaluation procedures.
Elements of compensation can vary substantially depending on the types of workers and industries. Consequently, the earlier ANPRM asked several questions designed to elicit feedback on how to measure compensation. In general, responses addressed three strategies: (1) Base pay, (2) total compensation disaggregated into separate elements like base pay, bonuses, overtime or commissions, and (3) total compensation aggregated into a single amount. Contractors and representatives of the business community stated a preference for base pay as a measure. These commenters noted that base pay is the most common and comparable element of compensation across employees. They were concerned that aggregating multiple forms of compensation would not allow for the consideration of the different factors that go into explaining base pay. These factors may or may not be the same for explaining bonuses, overtime or other compensation elements.
On the other hand, employee groups, civil rights and worker advocacy organizations generally favored total compensation disaggregated into separate pay elements. These commenters believed that this strategy is best for addressing discrimination in compensation that does not result from base pay but from other earnings sources such as bonuses, overtime, and commissions. There were few comments on the third strategy, total compensation aggregated into a single amount.
After considering the comments submitted in response to the ANPRM regarding the best way to measure compensation for purposes of a compensation data collection tool, a definition of compensation is set forth in the proposed Equal Pay Report. In the Equal Pay Report, OFCCP proposes using aggregate compensation based on W-2 earnings along with one or more other relevant data points. One relevant data element is the number of hours worked. OFCCP proposes calculating hours worked as follows:
• For salaried workers, contractors should provide actual hours of work if the contractor records actual hours. This is required for nonexempt employees but is not required for exempt employees. If contractors do not have actual hours worked data, they may default to 2080 for full-time and 1040 for part-time.
• For hourly workers, actual hours of work.
• Reported hours may also be adjusted for part year work using date of hire or dates of leave as well, but this is not specifically required.
OFCCP proposes collecting aggregate measures of hours worked so that the aggregate measures of W-2 earnings can better account for potential differences in work hours over the reporting period. Total compensation data, that is, total W-2 earnings and hours worked, provides some insight into the effect that all contractor pay practices may be having on compensation by gender, race and ethnicity. OFCCP is also proposing to collect the total number of workers and the total aggregate compensation for each group of workers as defined by EEO-1 job category, sex, race and ethnicity.
OFCCP, by using this strategy, is striking an appropriate balance between minimizing contractor reporting burden and ensuring that the proposed report includes information on non-base pay elements. By limiting compensation reporting to W-2 earnings, and using existing EEO-1 job categories, contractors are not required to develop or significantly alter payroll and human resources systems. This is the case because existing contractor systems currently gather and report W-2 earnings data, and use EEO-1 job categories for required EEO-1 reporting. OFCCP similarly believes that existing contractor systems record the number of hours worked by employees or maintain sufficient information to report the requested data.
Though we are proposing the use of aggregate compensation based on W-2 earnings, and one or more relevant data points, we did examine the usefulness of the Occupational Employment Statistics Survey (OES) definition as a measure of employee compensation. The OES is a semiannual mail survey and participation is not compulsory, and it does not collect data by gender, race, and ethnicity.
A concern regarding aggregate W-2 earnings is the potential inaccuracies when comparing part-time and full-time employees, and employees who have worked only part of the year. OFCCP proposes to address this issue by also collecting total hours worked for each group of employees whose compensation is being summarized. The Fair Labor Standards Act (FLSA) requires employers to keep records of actual hours worked for all non-exempt employees, whether hourly or salaried.
New IRS reporting requirements for the Affordable Care Act (ACA) mandate that employers report the number of employees working at least 30 hours per week making it necessary that employers track hours,
• The definition of compensation and what data sources are available;
• the advantages and disadvantages of using the OES to define compensation;
• the statistical and analytical value associated with collecting hours worked, and the cost of collecting hours worked;
• the number of employees for the purpose of creating an objective industry standard against which contractors would be measured and prioritized for review; and
• the usefulness of applying existing standards for calculating worker hours and full-time or part-time status found in the FLSA, the ACA, or other existing Federal regulations.
OFCCP is not proposing that contractors provide data on “factors” that affect compensation. Such factors are elements that might explain differences in compensation. In analyzing compensation for potential discrimination, it is common to include
Employers, including Federal contractors, vary widely in both the factors they use to determine compensation, and in how and whether they maintain that data in electronic form. Collecting information on factors would be much more expensive and time-consuming for both contractors and the agency. Finally, data at this level of detail would be extremely difficult for OFCCP to analyze meaningfully without extensive and time-consuming work devoted to deciphering and understanding the coding choices of each contractor, and cleaning and recoding many potentially inconsistent data fields. OFCCP's proposed methodology, to some extent, takes into account the particular compensation factors that may explain some or all of an overall pay gap reported by a particular contractor. This is so because the information reported by contractors within an industry, using the Equal Pay Report, will be used to develop the objective industry standard. It is assumed that the compensation factors within an industry may not vary widely, though some differences are still likely to exist. Individual contractors in an industry will be compared to the objective industry standard and the amount of difference between the two will help prioritize contractors for compliance evaluations. It is during the scheduled compliance evaluation, however, that OFCCP can meaningfully analyze a contractor's particular compensation practice, scheme, and philosophy, including the particular factors used to set compensation levels.
Many substantive comments addressed how to group workers for purposes of reporting compensation information. Generally, commenters addressed four possible approaches: (1) Grouping by job title, (2) grouping by AAP job group, (3) grouping by EEO-1 job category, and (4) deferring to the contractor's choice of grouping among multiple options. There was no clear consensus from the comments.
Proposed § 60-1.7(b)(1) provides that data must be provided by “specified job categories” without identifying those categories; the Equal Pay Report will specify the job categories, as well as several other data points relevant to developing the objective industry standard. In the report, OFCCP is proposing to use the existing ten EEO-1 job categories and subcategories for contractors who already report using the EEO-1 form. The EEO-1 job categories have been used for many years and are clearly defined. Any contractor that is or was previously covered by the EEO-1 reporting requirement is already required to categorize their employees into these categories on an annual basis. Therefore, using the EEO-1 job categories will remove the step of categorizing employees for purposes of completing the Equal Pay Report. The EEO-1 categories are, therefore, the least burdensome and least confusing means of categorizing employees.
Unlike job titles and AAP job groups, which are defined by each contractor and not standardized across all contractors, contractors must consistently maintain their EEO-1 job categories. This creates clear comparability across contractors. A job grouping system is necessary for the Equal Pay Report to fulfill its intended purpose; without compensation data defined by uniform job groupings, contractor compensation practices towards similar groups of employees could not be easily compared to identify anomalies. These comparisons will not be used to determine violations, and any distortion caused by nuances not recognized by the grouping system can be clarified during a compliance evaluation.
A substantial number of ANPRM commenters argued against the use of EEO-1 job categories because they fail to reflect elements such as differences in skill, experience, education, and other factors potentially affecting pay. Comparing employers in similar industries will help minimize these differences. However, any job grouping system used will necessarily involve creating groups containing non-identical positions, with unique factors that may affect pay. In addition, comparing workers only within narrowly defined job groupings can obscure patterns of pay disparity that transcend jobs, and that may be caused by discrimination in promotion, job assignment or other glass ceiling or channeling practices. Broader groupings allow OFCCP to consider larger patterns of pay disparity that may transcend specific positions, levels or units. Notably, the National Academies panel recommended EEO-1 job categories for reporting of summary data, because of their broad applicability, the experience of enforcement agencies with their use, and their clarity and simplicity.
However, as the comments to the ANPRM demonstrate, there is a variety of potential approaches to grouping data. For the reasons stated, OFCCP is proposing the use of the EEO-1 job categories for the Equal Pay Report but is interested in comments on the extent to which other possible job or occupation groupings are sufficiently universal that they could be used when developing objective industry compensation standards.
The ANPRM asked a series of questions related to the issue of which contractors should be required to provide compensation data via a data collection instrument. In response, some commenters made additional suggestions regarding who should be included or excluded. In general, these comments addressed applying the data collection requirement to all contractors, to prior violators only, to supply and service contractors only versus including construction contractors, to small businesses, to bidders or new contractors, and addressed whether and how multi-establishment contractors would report.
Proposed § 60-1.7(b)(2) identifies the contractors and subcontractors that must submit the Equal Pay Report. Proposed § 60-1.7(b)(2) states that the contractors and subcontractors that are required under § 60-1.7(a)(1) to file EEO-1 Reports with the Joint Reporting Committee must complete and file the proposed Equal Pay Report if they also more than 100 employees and their contract or subcontract covers a period of at least 30 days, including modifications. Generally, this covers prime contractors and first tier subcontractors that are private employers and are large enough to be
Some commenters suggested that the reporting requirement should be applied exclusively to contractors and subcontractors previously identified as violators by the OFCCP. This limitation, they assert, would avoid imposing an additional burden on contractors and subcontractors who have not previously committed violations. The primary purpose of the proposed Equal Pay Report is to refine the agency's neutral selection of contractors and subcontractors by focusing on those that are most likely to be in violation of OFCCP's regulations. In particular, the Equal Pay Report provides OFCCP with a reasonable and practical means of prioritizing likely violators for compliance evaluations. For the report to perform its primary function, it must collect data from a large pool of contractors and subcontractors without regard to violation history. Additionally, to the extent that OFCCP seeks to use this data to make predictions about the likelihood of finding a violation, it is important to collect data from compliant contractors and subcontractors to provide comparisons. Therefore, collection of data regardless of prior violation history is essential to the benefits that this tool will confer.
Construction contractors and subcontractors are not specifically identified in the proposed rule, but they would be required to complete and file the proposed Equal Pay Report if they are required under § 60-1.7(a)(1) to file EEO-1 Reports, and meet the contract value and employee thresholds proposed in this NPRM. Many construction contractors and subcontractors do not meet the standards for filing EEO-1 Reports, either because of the number of employees or the short duration of employment.
• The potential burdens for construction contractors and subcontractors, including comments on the feasibility of data collection,
• the sophistication of current payroll and HR systems, and
• the potential concerns regarding communication between prime and subcontractors about the proposed reporting requirements.
Numerous commenters expressed concern that the reporting requirement would impose an undue burden on smaller contractors and subcontractors, damage their ability to compete, or serve as a disincentive to becoming a Federal contractor. A small number requested an exemption from the requirement by means of raising the jurisdictional threshold. A few others argued that it would be better to design two sets of questions, one for smaller contractors and subcontractors and one for larger contractors and subcontractors. OFCCP used a two-tiered approach for addressing these concerns.
First, the existing EEO-1 reporting requirements apply to contractors who are private employers with 50 or more employees and satisfy other specified jurisdictional thresholds.
Second, after examining small contractor considerations created in existing regulations and the rationale behind them, OFCCP is proposing to exempt even more small contractors. Contractors with 100 or fewer employees are excluded from this new reporting obligation. For example, in the regulations on equal employment opportunities and affirmative action for individuals with disabilities, OFCCP allows contractors with 100 or fewer employees to apply the aspirational utilization goal to their entire workforce rather the their job groups. By excluding contractors with 100 or fewer employees, OFCCP is further reducing the cost and burden on Federal contractors.
Proposed § 60-1.7(b)(3) addresses the procedures for complying with the requirement to report on summary compensation data. The proposal would not specify a particular deadline for filing the proposed report; proposed § 60-1.7(b)(3)(i) states that the report must be filed by the date specified in the report. As noted earlier, OFCCP is proposing a January 1 through December 31 reporting period, and a report filing window of January 1 to March 31 of the following year. This window gives contractors one full quarter to compile the year-end earnings information in the format necessary for the Equal Pay Report. The December 31 date makes it easier to calculate summary W-2 earnings, as they are being simultaneously compiled for tax reporting purposes on an annual basis.
OFCCP considered other alternatives as well, including adopting the EEO-1 reporting period and filing dates. OFCCP determined that the EEO-1 dates do not give the agency a full calendar year's data, and contractors use different snapshots or payroll periods for EEO-1 reporting. Since OFCCP is proposing to collect annual W-2 earnings, contractors would be required to submit that information separately after having already filed the EEO-1 report and an interim Equal Pay Report in September. In lieu of an interim September filing date, which would possibly create additional burden, OFCCP considered delaying the report submission date until the following January. Under both approaches, OFCCP saw potential data issues and a likely increase in contractor burden.
Finally, OFCCP considered requiring contractors to report less frequently than annually. Requiring less frequent reporting would result in cost savings to contractors related to preparing and submitting an Equal Pay Report, and the amount of savings would depend on how frequently the contractor would be required to report. However, OFCCP determined that this could result in it setting objective industry standards that are based on stale or outdated data. This would compromise the integrity of OFCCP's enforcement program. For example, if there are long time lags, possibly delays of two or more years, between when a contractor submits data to OFCCP and when OFCCP uses the data to select contractors for review, important changes in the underlying data could have occurred. Since these data changes would not be reflected in
The proposed rule would require contractors to file the reports electronically. Proposed § 60-1.7(b)(3)(ii) provides that contractors and subcontractors must submit the Equal Pay Report electronically through OFCCP's web-based filing system by the specified filing deadline, unless a hardship exemption has been granted under subparagraph (3)(iii). Proposed § 60-1.7(b)(3)(iii) would provide that the Director may grant a hardship exemption from the electronic filing requirement where he or she concludes that electronic filing would impose an undue hardship on the contractor or subcontractor. Proposed § 60-1.7(b)(3)(iii) would require contractors and subcontractors to submit a written request for a hardship exemption and indicates that the eligibility criteria and application procedures will be available on the OFCCP Web site. Based on the number of electronic filings of EEO-1 reports, OFCCP expects that hardship exemptions would be granted only in exceptional circumstances. Examples include unexpected technical difficulties that prevent a contractor or subcontractor from electronically submitting the Equal Pay Report by the filing deadline and, in the very rare instances, when a contractor's payroll and human resources systems or other necessary systems are not automated. Contractors granted a hardship exemption would be required to submit the Equal Pay Report in the format specified in the notification granting the exemption, which, in some cases, could be a paper version of the report.
Several commenters addressed certain technical issues regarding how OFCCP might receive and maintain the data. Some contractor representatives requested the ability to upload their data directly to the agency; others expressed concern about OFCCP's capacity to safeguard confidential compensation data and its IT capacity. OFCCP will receive and maintain the compensation data using a secure IT system that fully complies with all applicable Federal Government security requirements and specifications. This will minimize the possibility of a security breach or hacking. The web portal will be password protected and information will be encrypted. Contractors will use the portal to key in their data directly or upload their own spreadsheets using standard formats. To make filing as easy as possible, OFCCP also proposes to provide a tool similar to that used by the state of New Mexico that would automate the few simple calculations necessary to file the report.
The agency anticipates that some contractors will choose to modify their existing HRIS or payroll databases to generate the report on a regular basis. OFCCP is particularly interested in comments on:
• The important IT changes to existing HRIS or payroll systems, OFCCP system security concerns, system compatibility issues; contractor IT implementation timeframes; and
• the criteria for exemptions from the electronic filing requirement.
Proposed § 60-1.7(b)(4) is modeled, in part, after the confidentiality provision that was included in the repealed Equal Opportunity Survey regulation. This provision explains the information protections applicable to the proposed Equal Pay Report. OFCCP will protect the raw summary compensation data reported by contractors and subcontractors from disclosure to the maximum extent permitted by law. EEO-1 reports are not publicly available. This section specifies that OFCCP will treat information submitted for the report as confidential to the maximum extent permitted under the Freedom of Information Act (FOIA). It also states that, consistent with current agency practice, OFCCP will not publicly disclose information that could cause commercial harm to contractors and subcontractors who are still in business. In addition to what is specified in the proposal, the agency will put internal safeguards in place that include, but may not be limited to, providing limited staff access to the data, establishing staff protocols for ensuring the security of files and data, providing staff training on data security and any penalties and sanctions that may apply for wrongful disclosure of the data, and ensuring that OFCCP's IT systems meet applicable Federal Government security standards. Lastly, § 60-1.7(b)(4) states that OFCCP may publish aggregate information based on compensation data collected under this section, such as ranges or averages by industry, labor market or other groupings, but only in such a way that it does not reveal any employee specific data.
Several commenters voiced confidentiality concerns about a compensation data collection tool. Some commenters assumed that a compensation data collection instrument would require contractors to provide specific compensation information regarding individual employees at specific establishments. These commenters characterize individualized compensation data as “especially sensitive and confidential” and maintain that disclosure of an organization's individualized compensation information would be “devastating” and that it could “decrease the contractor's competitive advantage or even threaten its business model.” OFCCP believes that the concerns expressed by these commenters have been sufficiently mitigated by the proposal to collect summary data on employee compensation, rather than individualized compensation data, but seeks comments on other ways to address the concern.
Some commenters expressed concern that the data submitted to OFCCP could be requested under FOIA. They argue that FOIA and the Department's FOIA disclosure policy and procedures at 29 CFR part 70 do not provide adequate protections against disclosure. To address concerns about disclosure of confidential compensation data, proposed § 60-1.7(b)(4) would provide,
Exemption 4 of the FOIA protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” If information falls within FOIA Exemption 4, the Trade Secrets Act, 18 U.S.C. 1905, also generally protects it. The Trade Secrets Act makes it a criminal offense for an officer or employee of the United States to disclose information relating to the trade secrets or confidential business information, including “confidential statistical data,” of any person, firm, partnership, corporation or association “to any extent not authorized by law.” Thus, because the information contained in the proposed Equal Pay Report generally falls within Exemption 4 and is protected by the Trade Secrets Act, OFCCP would not have discretion to release that information.
OFCCP's current practice is not to release data where the contractor still is in business and where the contractor or subcontractor asserts, and through the Department of Labor review process it is determined, that the data are confidential and that disclosure would subject the contractor to commercial harm. Moreover, the Department's FOIA regulations at 29 CFR 70.26 provide that business information will be disclosed under FOIA only in accordance with the procedures set forth in the regulation. The procedures instruct the submitter of business information to designate by appropriate markings either at the time of submission, or at a reasonable time thereafter, any portion of a submission that it considers to be protected from disclosure under Exemption 4. The regulations require OFCCP to notify the submitter on a case-by-case basis whenever a FOIA request is made for information the submitter has designated protected from disclosure or when OFCCP believes the information requested under FOIA may be protected from disclosure under Exemption 4. This notification gives contractors the opportunity to object to the disclosure of any data they consider confidential.
OFCCP currently collects compensation information during the course of its compliance evaluations, and the agency is not aware of any instance in which compensation data were disclosed without the consent of the contractor or subcontractor. It has always been OFCCP's policy not to release data that is determined to be confidential or has the potential to subject the contractor to commercial harm if disclosed, and this policy will be applied to the proposed Equal Pay Report as well.
Existing § 60-1.7(a)(3) provides that the Deputy Assistant Secretary or the applicant, on their motions, may require a contractor or subcontractor to keep employment or other records and to furnish, in the form requested, within reasonable limits, such additional information about its employment practices as the Deputy Assistant Secretary or the applicant deems necessary for the administration of the Order. The proposed rule would include this provision in a new § 60-1.7(c), with one minor change. In proposed § 60-1.7(c) the title “Director” replaces “Deputy Assistant Secretary.” The proposed rule would include a reference to the applicability of the existing record retention provision found in 41 CFR 60-1.12; specifically, that each contractor shall retain its Equal Pay Report for a period of not less than two years from the date of the making of the report.
Section 60-1.7(b) of the existing regulations addresses the certifications concerning compliance with the requirements of Executive Order 11246 that bidders and prospective contractors must submit with their bids. The existing regulations require the bidder or prospective contractor to state in writing: (1) Whether it has developed an affirmative action program pursuant to part 60-2; (2) whether it has participated in a previous contract subject to the Executive Order's equal opportunity clause; and (3) whether it has filed with the Joint Reporting Committee, the Deputy Assistant Secretary, or the EEOC all reports due under applicable filing requirements. The proposed rule would revise and move the existing § 60-1.7(b) to a new § 60-1.7(d), and clarify that only bidders who currently hold Federal contracts or subcontracts must make a representation related to whether they are currently a Federal contractor or subcontractor and whether they filed the Equal Pay Report for the most recent filing period.
The NPRM proposes to delete the reference to part 60-2 from the paragraph's title and the paragraph itself. Instead, proposed § 60-1.7(d) would generally refer to Executive Order 11246 and the implementing regulations, making clear that the representation provisions apply to construction contractors as well as to supply and service contractors. Proposed § 60-1.7(d) would specifically require the contractor to state whether it is currently a Federal contractor required to create affirmative action programs and file EEO-1 Reports and Equal Pay Reports. If so, the contractor must state whether it has created an affirmative action program; filed the EEO-1 Report(s) for the most recent reporting period with the Joint Reporting Committee; and whether it has filed an Equal Pay Report for the most recent reporting period with OFCCP.
Several commenters provided views on the requirement to report compensation and whether it could or should apply to bidders and prospective contractors. Some suggested that OFCCP lacks the authority to collect data from bidders and that it raised the potential for unnecessary burdens or the risk of disclosure of sensitive compensation data to competitors. Under the proposed rule, the Equal Pay Report would be treated like current requirements to file EEO-1 Reports and prepare affirmative action programs. The proposed rule requires prospective contractors to make a representation as to whether they have complied with all requisite reporting as part of the bidding pre-award process, including the proposed Equal Pay Report if they currently are Federal contractors or subcontractors.
Existing § 60-1.7(b)(2) provides that the bidder or prospective contractor shall be required to submit such information as the Deputy Assistant Secretary requests prior to the award of the contract or subcontract. This provision is renumbered to proposed § 60-1.7(d)(2) without substantive changes. It does, however, add the title “Additional information” and changes “Deputy Assistant Secretary” to “Director.”
Section 60-1.7(e) provides sanctions for the failure to file required reports, and certifications and representations. OFCCP proposes to set forth the provision regarding sanctions in a separate paragraph because it would apply to the failure to file the EEO-1 Report, the proposed Equal Pay Report, and any other report requested by the Director. Existing § 60-1.7(a)(4) addresses the sanctions under Executive Order 11246 for a contractor's failure to file timely, complete, and accurate reports. Proposed § 60-1.7(e) restates
Existing § 60-1.7(c) states that the reports filed pursuant to this section shall be used only in connection with the administration of Executive Order 11246, the Civil Rights Act of 1964, or in furtherance of the purposes of the Order and the Act. Proposed § 60-1.7(f) sets forth the provision found in existing § 60-1.7(c) with several minor non-substantive changes. Specifically, in proposed § 60-1.7(f) “Executive Order 11246” is used instead of “the order,” the second use of the term “the order” is capitalized, and “the Act” is substituted for “said Act.”
Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Executive Order 13563 also requires agencies to periodically review existing rules to determine if they should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives. OFCCP plans to retrospectively review this rule at an appropriate time after it is finalized. OFCCP requests public comment on how the effectiveness of this rule could be evaluated, and what data and methods would be needed to do so.
This proposed rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. The NPRM is not economically significant, as it will not have an annual effect on the economy of $100 million or more. The Office of Management and Budget has reviewed the NPRM.
The proposed regulatory changes are have been developed to enhance OFCCP's efficiency and effectiveness in enforcing laws that prohibit compensation discrimination by Federal contractors and subcontractors. More specifically, the regulatory goals include:
• Increasing contractor self-assessment of its compensation policies and practices, and expanding voluntary compliance with OFCCP's regulations so as to advance OFCCP's mission of ensuring nondiscrimination in employment and decreasing the pay gap between males and females and between races.
• Providing probative compliance information, including data on industry and/or labor market standards to promote industry-wide deterrence within the Federal contractor community and lead to modified compliance behavior in the compensation arena.
• Making data-driven enforcement decisions that support the efficient use of limited enforcement resources. OFCCP will strategically deploy its resources to focus on conducting compliance evaluations of contractors that are more likely to have compensation discrimination violations.
• Shifting, to the maximum extent possible, compliance evaluation costs from contractors that are likely to be in compliance with prohibitions on pay discrimination to contractors that are more likely not to be in compliance.
• Contributing to the stability of working Americans by helping minimize the pay gap and promoting broad societal policy objectives of nondiscrimination and equal pay.
• Providing workers victimized by discrimination the opportunity to obtain the best possible remedies and relief. OFCCP anticipates increasing its capacity to identify more violations and obtain prompt remedies through a better-informed scheduling process for the estimated 4,000 compliance evaluations it conducts annually.
The specific proposal is to publish aggregate data gathered through the Equal Pay Report by industry, labor market, or other groupings to facilitate voluntary compliance efforts by Federal contractors and subcontractors. The data OFCCP proposes to collect would allow contractors and subcontractors to evaluate their performance against their peers and make determinations about how to focus their own self-assessments, thereby potentially promoting voluntary compliance and potentially avoiding the costs incurred during a compliance evaluation and/or litigation. This data sharing would also likely have both deterrent and preventive effects. In addition to gains in deterrent effects and voluntary compliance, OFCCP anticipates positive effects in enforcement. OFCCP's current ability to use data to find pay discrimination violations is limited to those contractors and subcontractors it evaluates, which is a small portion of the contractor universe. The increased availability of data should enable OFCCP to focus and allocate enforcement resources. Workers often do not know that they may be victims of pay discrimination; thus, this rule may be viewed as addressing an informational market failure. In other words, the NPRM could provide greater transparency on contractor compensation practices. This proposed data collection should provide OFCCP with the ability to focus its enforcement activities and, therefore, is a significant step forward in addressing the pay gap.
Research conducted by The Institute for Women's Policy Research (IWPR) concluded that the poverty rate for working women could be reduced by half if women were paid the same as comparable men. The paper determined that nearly 60 percent (59.3 percent) of women could earn more if working women were paid the same as men of the same age with similar education and hours of work.
These statistics are intended to provide general information about the potential impacts of eliminating pay differentials among men and women, including pay differentials not attributed to discrimination. In addition, the IWPR statistics include all employers and all employees in the U.S., whereas this proposed rule would apply to only a subset of such employers and employees. Therefore, the potential impact of this rule would be much smaller than the impact of eliminating pay differentials among all working men and women.
Discrimination, occupational segregation, and other factors contribute to creating and maintaining a gap in earnings and keeping a significant percentage of women in poverty. It is worth noting, however, that some research has established that women earn less than men regardless of the field or occupation.
OFCCP worked with several other Federal agencies on the National Equal Pay Task Force to identify the persistent challenges to equal pay enforcement and develop an action plan to implement recommendations to resolve those challenges. OFCCP also consulted a number of sources in order to assess the need for the proposed rulemaking. For instance, OFCCP reviewed national statistics on earnings by gender produced by BLS and the U.S. Census Bureau. Those statistics show persistent pay gaps for female and minority workers.
Currently, OFCCP lacks sufficient, reliable data to assess the gender- or race-based pay gap experienced by employees of Federal contractors or subcontractors, including how much of the potential pay gap is attributable to pay discrimination instead of nondiscriminatory factors, and how many contractors are violating the pay discrimination laws OFCCP enforces. This proposed Equal Pay Report is a step toward collecting useful data upon which OFCCP can make data-driven enforcement decisions.
In this section, OFCCP presents a summary of the estimated costs associated with the new requirements in § 60-1.7. Comments are welcome on every aspect of the cost and burden calculations including, but not limited to, the amount of time contractors would spend on complying with the proposals in this NPRM, including those related to IT (e.g., HRIS and payroll) system changes, data collection, recordkeeping and reporting, and any alternatives. The estimated labor cost to contractors and subcontractors is based on BLS data in the publication “Employer Costs for Employee Compensation” issued in December 2013, which lists total compensation for management, professional, and related occupations as $51.58 per hour and administrative support at $24.23 per hour.
Prime contractors and first tier subcontractors with a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications, with more than 100 employees, and that are required to file an EEO-1 Report will be required to file the proposed new Equal Pay Report. OFCCP believes that the proposed new provisions may affect 21,251 Federal contractors. This estimate includes 21,224 contractor companies or 67,578 contractor establishments that filed EEO-1 Reports.
OFCCP acknowledges that 5 CFR 1320.3(b)(1)(i) requires agencies to include in the burden analysis for new information collection requirements the estimated time it takes for contractors and subcontractors to review and understand the instructions for compliance. In order to minimize the burden, OFCCP will publish compliance assistance materials including, but not
OFCCP estimates that it will take a minimum of 1 hour to have a management professional at each establishment either read compliance assistance materials provided by OFCCP or participate in an OFCCP webinar to learn more about the new requirements. The estimated cost of this burden is based on data from the BLS in the publication “Employer Costs for Employee Compensation” (December 2013) which lists total compensation for management professionals at $51.58. Therefore, the estimated burden for rule familiarization is 67,605 hours (67,605 contractor establishments
The NPRM proposes requiring contractors and subcontractors to compile, complete and submit summary compensation data using the proposed Equal Pay Report. Coverage and exemptions for the proposed report would track those that already apply to contractors and subcontractors when filing the existing EEO-1 Report. In addition, contractors would have to: Meet the Equal Pay Report thresholds on the number of employees, and (1) have a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications; or (2) serve as a depository of Government funds in any amount; or (3) be a financial institution that is an issuing or paying agency of the U.S. savings bonds and savings notes. The reporting requirement would include construction subcontractors below the first tier that perform work at the construction site if they meet the requirements of criteria specified in proposed § 60-1.7(a)(1).
Federal contractors and subcontractors would be required to submit summary data by sex, race, ethnicity, job categories, and other relevant data points such as hours worked. In order to file the proposed report, OFCCP would provide a secure, easy-to-use, flexible web-based interface that permits them to either directly key in data or upload the data using a variety of standard formats. OFCCP proposes to provide detailed instructions on the completion and submission of the proposed Equal Pay Report. The NPRM contemplates that OFCCP would also provide a formatted XML template that could be downloaded and used to help automate the limited calculations necessary to file the reports from a spreadsheet of the contractor's current employee data exported from its HRIS and/or payroll system. Common payroll software packages and services could be programmed and/or integrated, as necessary, to generate this report for uploading. For contractors and subcontractors that may be unable to submit the report electronically, OFCCP proposes providing a hardship exemption that would allow for an alternate filing method for the report. The hardship request must be submitted, in writing, to the Director of OFCCP. The new requirements are limited to § 60-1.7. The NPRM proposes amending § 60-1.7(b) to mandate that contractors and subcontractors required to submit the EEO-1 Report provide data on employee compensation using the Equal Pay Report. In addition, OFCCP is considering covering postsecondary academic institutions that file the IPEDS report with the Department of Education and is seeking comment on that addition to the reporting requirement. More specifically, existing § 60-1.7(b) provisions on certification requirements for bidders would be placed in a new subsection, § 60-1.7(d).
Proposed § 60-1.7(b)(1) describes the requirements of the new report. The Equal Pay Report, promulgated by OFCCP, requires contractors and subcontractors to provide summary data on the compensation paid to employees by sex, race, ethnicity, specified job categories, and other relevant data points such as hours worked, and the number of employees. Contractors must submit the Equal Pay Report in the format and manner required by OFCCP.
As noted above, contractors would also be asked to submit hours worked. OFCCP proposes using the well-established EEO-1 job categories, with consideration of alternatives for postsecondary academic institutions. Based on the experience of the Joint Reporting Committee with electronic filing of the EEO-1 Report, OFCCP believes that 99 percent of its contractor and subcontractor establishments or 66,929 will complete the proposed form online and 1 percent or 676 will complete the proposed form manually. To complete the proposed report contractor establishments will need to identify, collect, summarize, and analyze demographic information and compensation data from their HRIS and payroll system.
Contractors and subcontractors that do not complete the proposed form online will gather the same information, conduct the same analyses and then manually complete the proposed report. OFCCP estimates it will take these establishments 8 hours on average to complete these tasks, including saving a copy of the report. OFCCP estimates that the burden for those establishments will be 5,408 hours (676 contractor establishments × 8 hours = 5,408 hours). OFCCP seeks public comments on the accuracy of its estimates of the amount of time contractors would spend completing and submitting the Equal Pay Report (estimates of initial capital costs from modifying computer systems are provided below).
OFCCP estimates that the combined burden hours for completing the proposed report are 406,982 hours (401,574 hours + 5,408 hours = 406,982 hours). The cost for this provision is approximately $12,643,913 ((401,574 hours × 0.25 × $51.58) + (401,574 hours × 0.75 × $24.23) + (5,408 × 0.25 × $51.58) + (5,408 × 0.75 × $24.23)) or $187 per establishment ($12,643,913/67,605 contractor establishments).
Proposed § 60-1.7(b)(2) identifies who must file an Equal Pay Report. Proposed § 60-1.7(b)(2) states that contractors who must file the EEO-1 must also file the proposed OFCCP report. Should OFCCP determine that postsecondary academic institutions are to be covered by the new requirement they would be incorporated into proposed § 60-1.7(b)(2). Therefore, there is no new burden for this provision.
Proposed § 60-1.7(b)(3) describes the procedures established for complying with the requirement to report on summary compensation data. The
Proposed § 60-1.7(b)(4) would apply existing agency procedures on confidentiality of records and information to the Equal Pay Report. It also provides OFCCP the ability to publish aggregate compensation data, such as pay ranges or averages, by industry, labor market or other groupings, obtained because the submission of Equal Pay Reports. This provision does not create any new burden because it is an existing provision.
Proposed § 60-1.7(e) would apply sanctions under existing § 60-1.7(a)(4) to the failure to file a complete and accurate Equal Pay Report or representation, and makes minor changes for clarity and readability. As this is an existing requirement, there is no new burden for this provision.
Proposed § 60-1.7(d) would require Federal contractors and subcontractors, that are bidders or prospective prime contractors on a new contract or subcontract, to make two representations: (1) Make a representation or provide a written statement that they are currently a contractor or subcontractor; and (2) make a representation that the contractor or subcontractor submitted the required Equal Pay Report for the prior reporting period. OFCCP recognizes that bidders and prospective prime contractors register and make their representations and certifications in the General Services Administration's System for Award Management (SAM). Thus, the representation will be an additional check box added into the SAM system. OFCCP has included this burden in its discussion of initial capital and start-up costs, below.
Proposed 1.7(c) would require contractor establishments that file the proposed Equal Pay Report to maintain their records. For example, contractors would maintain compensation data, hours worked, and demographic information in accordance with OFCCP's current recordkeeping provisions at 41 CFR 60-1.12. Section 60-1.12(a) requires contractors to preserve any personnel or employment record made or kept for a period of not less than two years. However, if the contractor has fewer than 150 employees or does not have a contract of at least $150,000, this retention period is one year. Maintaining records is an existing obligation under OFCCP regulations. Any additional burden associated with preserving copies of the Equal Pay Report is included as stated above.
Note that the burden estimates for modifying IT systems is at the high end of the start-up cost range. The possible range for start-up cost is a low of $29,802,431 (assuming that 99 percent of companies make IT system changes) and an estimated high of $30,104,167 (assuming that 100 percent (or 21,251) of companies make system changes.
In order to estimate the start-up costs for the proposed Equal Pay Report, OFCCP considered what contractors would be required to do in order to extract required data from existing HRIS and payroll systems. Because contractors and subcontractors must already maintain information on their employees by race, ethnicity, sex and EEO-1 job category, and must already have a system to assign employees and jobs to these categories and record it; it is unnecessary to modify the existing databases to capture new information for this report. However, contractors may keep that demographic information in a database different from the one used to record payroll (W-2) and hours worked information, and may need to develop standard queries and reporting formats to extract and merge the data each year for the Equal Pay Report. In addition, contractors and subcontractors may need to write additional code or undertake other programming to summarize the data for entry into the proposed Equal Pay Report.
The minimum cost for modifying HRIS and payroll systems is based on the estimate that 99 percent of contractors utilize some type of electronic system. Based on information from IT professionals, OFCCP estimates it would take contractors on average 30 hours for an IT professional to write code, develop the queries, create a standard report that matches the employee demographic and job information to their W-2 earnings and hours worked, and summarize and enter the data totals for each job group/demographic combination in the proposed report. This includes time reviewing the rule itself and the forms and instructions, developing the requested change or work order, establishing a development schedule, confirming the scope and specifications of the work to be completed, working on specific system changes, testing the changes, resolving problems, conducting quality assurance, and implementing the final changes. The estimated costs for these modifications are based on the BLS data in the publication, “Employer Costs for Employee Compensation” (December 2013), which lists total compensation for professional and related occupations at a rate of $47.22 per hour. Therefore, the minimum capital and start-up costs estimated for Federal contractor companies is 631,140 hours (21,038 contractor companies × 30 hours = 631,140). We calculate the total minimum estimated start-up costs as $29,802,431 (631,140 × $47.22 per hour = $29,802,431). This represents an estimated cost of $1,417 per company ($29,802,431 start-up cost/21.038 contractor companies = $1,417). OFCCP seeks public comments on the accuracy of its estimate of the average cost of modifying HRIS and payroll systems in response to this proposed rule.
Assuming all contractor companies utilize HRIS and payroll systems and that they all have to make similar system changes, the estimated burden for modifying these systems is 637,530 (21,251 contractor companies × 30 hours = 637,530). We calculate the total costs as $30,104,167 (637,530 hours × $47.22 per hour = $30,104,167) or $1,417 per contractor company ($30,104,167/21,251 contractor companies). Assuming that all contractor companies utilize electronic HRIS and payroll systems may be an overestimation of costs because there may be some contractor companies that do not have electronic systems.
The General Services Administration maintains SAM, which consolidated eight Federal procurement systems and the catalog of Federal domestic assistance into one database. Companies that want to do business with the Federal government are required to register in SAM, and bidders including prime contractors are required to make representations regarding their compliance with a variety of requirements including OFCCP's current requirements. Contractors complete this representation process by responding to four questions. The contractor has only to check or mark the response in the appropriate check box. Thus, to comply with the proposed requirements, bidders and prospective prime contractors will check one additional box when registering and make their representation in SAM. OFCCP believes that there is no significant burden associated with responding to one additional question in the SAM registration process. Thus, OFCCP estimates that there is no additional burden associated with this representation.
Though OFCCP seeks comments on all aspects of its calculation of burden and costs, the agency specifically seeks comments on the burden associated with the representation process § 60-1.7(d)(1)(v), including matters related to the use of the SAM system.
Note that the start-up cost estimate of $30,104,167 is at the high end of the start-up cost range. The possible range for start-up cost is a low of $29,802,431 (assuming that 99 percent of companies make IT system changes) and an estimated high of $30,104,167 (assuming that 100 percent (or 21,251) of companies make system changes).
OFCCP estimates that contractors will incur some operations and maintenance costs in addition to the initial capital or start-up costs calculated above. The contractor must annually report to OFCCP summary data on the compensation paid to employees by sex, race, and ethnicity within specified job categories using a web-based online filing system. OFCCP estimates that 67,605 contractor establishments will respond annually and 99 percent of them will do so electronically. Contractors using the web-based filing system will not incur copying and mailing costs. However, to account for the estimated 1 percent of contractors filing without using the web-based filing system for some reason (i.e. no access, compatibility, etc.), OFCCP is estimating their printing, copying and mailing costs. The estimated cost for printing and copying would be $216 (676 contractor establishments × 4 pages × $0.08 per page = $216). OFCCP estimates that the contractor will submit the report by registered mail and further estimates the cost to be $3,887 (676 contractor establishments × $5.75 = $3,887). The total estimated operations and maintenance cost for the Equal Pay Report is $4,103.
OFCCP recognizes that some contractor establishments do not have automated HRIS or payroll systems or may have systems that would be incompatible with OFCCP's web-based online filing system. Contractors facing this challenge must annually request from OFCCP a hardship exemption to the electronic filing requirement. The request for exemption would be a one-page letter to the Director, OFCCP acknowledging the obligation to submit the report, explaining why the report cannot be submitted electronically and requesting exemption for that year's filing. OFCCP estimates that 1 percent of its contractor establishment universe or 676 contractor establishments will request a hardship exemption to the electronic filing requirement. Therefore, OFCCP estimates that the cost for printing and copying the one page letter would be $108 (676 contractor establishments × 2 pages × $0.08 = $108). In addition, OFCCP estimates the mailing cost would be $331 (676 contractor establishments × 1 letter × $0.49 per letter = $331). The total estimated operations and maintenance cost for the hardship exemption would be $439 ($108 + 331).
The expectation is that bidders and prospective prime contractors will include in their bid proposals the modified language indicating whether the bidder or prospective prime contractor filed the proposed Equal Pay Report for the most recent reporting period. This provision is a small part of a larger bid proposal sent to contracting agencies. Therefore, OFCCP does not assume any of the printing, copying or mailing costs associated with this provision.
OFCCP estimates that implementing the proposed Equal Pay Report will increase the costs related to staffing and improving current case management and information systems. In terms of staffing, OFCCP anticipates hiring four full-time positions at its national office. These staff members will be involved in providing technical assistance to contractors completing the forms, managing the content of the online portal, reviewing exemption requests, and analyzing data. OFCCP estimates the staffing costs to be $359,696.
Additionally, as a part of an ongoing effort by DOL to enhance services provided to Federal contractors, OFCCP anticipates that it will be upgrading its existing IT system, including its case management system and support for the Web-based features for the online submission of the Equal Pay Report. OFCCP anticipates that these upgrades will cost $3.4 million. Therefore, OFCCP estimates the cost to the Federal Government to be $3.8 million.
There are two ways in which this rule could have transfer effects: (1) The rule allows OFCCP to find more violations and recover payments for the violators' employees, and (2) contractors voluntarily increase transfers to certain employees, potentially to reduce their probability of being subject to a compliance evaluation or enforcement action by OFCCP. This includes, for example, changes in behavior during compliance monitoring that may be put into place as a part of the remedy for violations found through enforcement actions.
In order to develop an estimate of transfers that may result from this proposed rule, OFCCP notes that approximately 4,000 Federal contractor establishments, of a total of 500,000 (or 1 in 125 establishments) are audited each year. OFCCP anticipates that it will conduct approximately the same number of audits under this rule as it has in the past. In 2013, OFCCP recovered approximately $1.2 million for 965 workers. Estimating the amount of rule-induced future recoveries using only the 2013 data is problematic for several reasons. First, these calculations would be based on only one year's set of data and, as such, appear unreliable for establishing future projections. Also, collecting sufficient historical data could be challenging because monetary recoveries were not always calculated and reported using the same methodology. To address this challenge, the agency is refining and standardizing its data collection and reporting, including information on recoveries. Second, the recovery number is based on compliance evaluations conducted using a scheduling process that did not include prioritization to increase the likelihood of identifying violators and violations. This process was neither highly effective nor efficient. The use of the Equal Pay Report to set objective industry standards against which contractors' pay practices can be compared to determine the likelihood that a violation exists may increase monetary recoveries. However, these recoveries could be reduced, in part, by the potential for contractors to voluntarily increase the amount of transfers to certain employees. It could be further off-set by contractors who cease discriminatory practices as a part of participating in compliance monitoring or other activities related to remedying violations found during an OFCCP enforcement action.
OFCCP does not currently have sufficient information to reliably estimate the potential transfer payments from this rule, and requests public comment on data and methods to do so. Rule-induced transfers from OFCCP enforcement actions or voluntary actions by contractors most likely represent a transfer of value to underpaid employees from employers (e.g., if additional wages are paid out of profits) or taxpayers (if contractor fees increase due to the need to pay higher wages to employees) or other employees.
OFCCP considered a range of regulatory alternatives that would better enable the agency to encourage greater voluntary compliance and effectively enforce its laws prohibiting compensation discrimination. In addition to the approach proposed in the NPRM, OFCCP considered two alternative approaches. First, OFCCP considered requiring contractors to submit individual compensation data for each employee and factors that
OFCCP also considered collecting individual compensation data. Collecting individual compensation data would provide clearer information about potentially discriminatory compensation practices, both systemic and individualized. This would lead to a better-informed assessment of contractors' compliance with Executive Order 11246.
OFCCP ultimately determined that it would be burdensome and costly to require contractors to submit individual compensation data. Selecting aggregate data would permit easy analysis of comparability data across contractors. It would also allow OFCCP to devote the time to conduct a more detailed analysis where it is more likely to matter. Collecting aggregate data would also avoid many potential privacy or other concerns about protecting confidential employee salary data.
OFCCP also considered the alternative of developing a database for scheduling based on the individual compensation data the agency has collected from a number of Federal contractors over the last several years during regular compliance evaluations. When the agency schedules contractors for review, it requests preliminary summary data on compensation, in the form of average pay by sex and race within case-specific groupings determined by the contractor. Based on the initial analysis of this summary data, OFCCP can then request individual data showing the compensation paid to each worker, their demographics, and data on factors such as tenure or performance ratings.
The benefits of this approach are reduced burden and potential additional precision in assessing the reasons for contractor disparities. Because the alternative relies on existing data, it imposes no new data collection burden. Further, these individual data files are more comprehensive than the summary data in the Equal Pay Report, because they include individual pay records and factors. This would allow the agency to conduct more statistical tests and perform a more nuanced assessment of potential explanations for pay disparities. The agency could attempt to use this information, along with violation history, to determine what a “profile” of a potential violator looks like. OFCCP would then attempt to prioritize similar firms for a compliance evaluation.
However, there are a host of both practical and technical problems with this alternative. In the first place, once OFCCP determined the size and type of pay differences that may be linked to a potential violation, it would have to use data other than compensation to build the “profile.” Because there is no existing source of data on compensation by demographics for specific contractors, OFCCP could not select contractors with similar pay practices for review. Instead, the agency would have to use indirect markers such as industry, employer size, or basic EEO-1 demographics to make selections. This increases the likelihood of selecting contractors whose pay practices are actually in compliance.
Further, the agency requests individual data on a subset of the approximately 4,000 cases it schedules for review each year; these data are not necessarily representative of all contractors. This means the profile would be based on a highly limited and potentially biased sample of contractor pay data. The number of available records may vary widely by industry, geographic location, employer size or type of job. This means OFCCP could not use these data to develop comprehensive and objective measures of the contractor pay gap by industry.
Finally, this approach is not consistent with the Presidential Memorandum. The Memorandum directs the agency to collect new summary data that would increase the efficiency and effectiveness of its enforcement and support voluntary compliance. Using existing data is not a new data collection, it is less likely than the Equal Pay Report to improve the agency's ability to focus on potential violators, and it would not allow OFCCP to calculate the objective industry measures to support deterrence and voluntary compliance.
Moreover, OFCCP believes the current regulations have negative effects as well. For example, the current regulations do not provide OFCCP a systematic means for evaluating contractors with the greatest potential to be violating anti-pay discrimination laws. Therefore, under the current regulations, OFCCP is as likely to conduct compliance evaluations of contractors with no leading indicators showing potential for violating anti-pay discrimination laws as it is of contractors whose summary compensation data show a greater potential for violating such laws. The current regulations, therefore, impose compliance review costs on compliant contractors and subcontractors.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
Agencies must perform a review to determine whether a proposal or final rule would have a significant economic impact on a substantial number of small entities.
However if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. See 5 U.S.C. 605. The certification must include a clear statement providing the factual basis and reasoning for this determination.
OFCCP designed its initial regulatory flexibility analysis to aid stakeholders in understanding the small entity impacts of the proposed rule and to obtain additional information on the small entity impacts. OFCCP seeks comments on the following estimates, including the number of small entities affected by the NPRM, the compliance cost estimates, and whether alternatives exist
OFCCP is publishing this proposed regulation to implement the requirements of the April 8, 2014 Presidential Memorandum, “Advancing Pay Equality Through Compensation Data Collection.” The Presidential Memorandum directs the Secretary of Labor to develop a rule that requires Federal contractors and subcontractors to submit summary data on the compensation paid to employees.
This proposed rule will provide guidance on the type of data covered Federal contractors and subcontractors are required to provide and specific information on providing the data. As discussed in the preamble, Section 202 of Executive Order 11246 requires Federal contractors to agree to comply with all provisions of the Executive Order and the rules, regulations, and relevant orders of the Secretary of Labor. Section 203 of Executive Order 11246 grants the Secretary of Labor broad authority to require compliance reports from contractors and subcontractors.
As explained in this proposed rule, the purpose of this NPRM is to amend the regulations implementing Executive Order 11246 to add a requirement that Federal contractors and subcontractors report annually summary information on the compensation paid to employees by sex, race, ethnicity, and specified job categories. The requirements in Executive Order 11246 generally apply to any business or organization that (1) holds a single Federal contract, subcontract, or Federally assisted construction contract in excess of $10,000; (2) has Federal contracts or subcontracts that have a combined total in excess of $10,000 in any 12-month period; or (3) holds Government bills of lading, serves as a depository of Federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount.
This NPRM contains provisions that if adopted could impose compliance requirements on contractors. The general requirements with which contractors must comply are set forth in 41 CFR 60-1.7. Annually, covered Federal contractors must electronically submit an Equal Pay Report to OFCCP. Contractors who are unable to submit the report electronically may ask for an exemption in order to submit the report in another approved format. OFCCP's proposed new requirements cover prime contractors and first tier subcontractors that are required to file an EEO-1 Report, have more than 100 employees, and a contract, subcontract, or purchase order amounting to $50,000 or more. Such compliance requirements are fully described above in other portions of this preamble. The following section analyzes the cost of complying with this NPRM.
OFCCP must determine the compliance cost of this proposed rule on small contractor firms, and whether these costs will be significant for a substantial number of small contractor firms (i.e., small business firms that enter into contracts with the Federal Government), and whether these costs will be significant for a substantial number of small contractor firms. If the estimated compliance costs for affected small contractor firms are less than three percent of small contractor firms' revenues, OFCCP considers it appropriate to conclude that this proposed rule will not have a significant economic impact on the small contractor firms. OFCCP has chosen three percent as its significance criterion. However, using this benchmark as an indicator of significant impact may overstate the impact of this proposed rule because the costs associated with efficient enforcement of the prohibitions against compensation discrimination are expected to be mitigated by societal benefits. These benefits include supporting working women and strengthening working families but are difficult to quantify; the benefits are discussed more fully in the preamble of this NPRM.
The data sources used in the analysis of small business impact are the Small Business Administration's (SBA) Table of Small Business Size Standards
OFCCP used the following steps to estimate the cost of the proposed rule per small contractor firm as measured by a percentage of the total annual receipts. First, OFCCP used Census SUSB data that disaggregates industry information by firm size in order to perform a robust analysis of the impact on small contractor firms. OFCCP applied the SBA small business size standards to the SUSB data to determine the number of small firms in the affected industries. Then OFCCP used receipts data from the SUSB to calculate the cost per firm as a percent of total receipts by dividing the estimated annual cost per firm by the average annual receipts per firm. OFCCP applies this methodology to each of the industries and displays the results in the summary tables below (
In the NAICS industry groupings of mining (NAICS code 21), utilities (NAICS code 22), Manufacturing (NAICS codes 31-33), and Wholesale Trade (NAICS code 42), the increase in the cost of compliance resulting from the NPRM is
OFCCP now sets forth its estimate of the number of small contractor firms actually affected by the proposed rule. OFCCP determined the number of small regulated entities that would be subject to this NPRM by using the FY 2012 EEO-1 data and the identified universe of IPEDS filers within OFCCP's jurisdiction. Of the 21,251 contractor firms that would be required to file the proposed report, OFCCP estimates that 20,232 employ between 101 and 500 employees. Thus, OFCCP estimates that the number of small contractor firms affected by this regulation is 20,232. OFCCP believes that this NPRM will not have a significant economic effect on a substantial number of small businesses affected. OFCCP invites the public to provide information related to this data limitation, and any data on small contractors.
OFCCP is not aware of any relevant Federal rules that conflict with this NPRM.
As described above, OFCCP is requesting input on a number of alternatives regarding the collection and submission of the compensation information.
This NPRM applies to Federal contractors with more than 100 employees, a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications, and that file an EEO-1 Report. Contractor companies that do not have more than 100 employees are not required to comply with this NPRM.
OFCCP drafted this NPRM to state in a clear way the compliance requirements for all contractors subject to this proposed regulation. The recordkeeping and reporting requirements imposed by this proposed rule are necessary for OFCCP to determine contractor compliance with Executive Order 11246 in the area of compensation practices.
OFCCP drafted this NPRM to ensure compliance with the Equal Pay Report requirements by providing clear guidelines. Under the proposed rule, contractors may achieve compliance through a variety of means. OFCCP makes available a variety of resources to contractors for understanding their obligations and achieving compliance.
Small contractor companies that do not meet the threshold of more than 100 employees and a contract, subcontract, or purchase order amounting to $50,000 or more are exempt from this requirement.
See the industry charts below.
Effective Date: 180 days from the date of publication of the final rule.
Compliance Date: Affected parties do not have to comply with the new information collection request until the Department publishes a Notice in the
Under the PRA, no agency may conduct or sponsor, and no person is required to respond to, a collection of information unless the agency has obtained a valid OMB Control Number. OFCCP will submit the proposed collections of information contained in this proposed rulemaking to OMB for review in accordance with the PRA.
The proposed rule would amend the existing regulation at 41 CFR 60-1.7, which addresses reporting obligations of Federal contractors, by adding a requirement that contractors and subcontractors submit summary data on the compensation paid to employees aggregated by sex, race, ethnicity, job categories, and other relevant data points in the proposed Equal Pay Report. These other data points could include, for example, the number of hours worked and the number of employees. The proposed rule would require contractors to submit the Equal Pay Report electronically unless the Director granted a contractor a hardship exemption from the electronic filing requirement. Further, the proposed rule would require contractors to certify compliance with their reporting obligations under the regulations implementing Executive Order 11246 when bidding on contracts.
The collection of information contained in the existing regulations implementing Executive Order 11246, with the exception of those related to complaint procedures, are currently approved under OMB Control No. 1250-0003 (Recordkeeping and Reporting Requirements-Supply and Service) and OMB Control No. 1250-0001 (Construction Recordkeeping and Reporting).
As described above, covered contractors and subcontractors with more than 100 employees, a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications, and that are required to file an EEO-1 Report would also be required to submit the proposed Equal Pay Report. Thus, based on the 2012 EEO-1 data, OFCCP estimates that 67,605 contractor establishments would submit an Equal Pay Report in the first year of the rule's effect.
OFCCP's proposed information collection request includes the burden hours and costs for conducting the activities outlined in proposed section 60-1.7(b). This information collection package will request approval of a standard form entitled “Equal Pay Report.”
Proposed section 60-1.7(b)(1) through (3)(ii) would require contractors to submit to OFCCP on an annual basis a report summarizing compensation paid to employees aggregated by gender, race, ethnicity, and job categories. OFCCP estimates that 99 percent of contractors will file the proposed report using the Web-based application and that 1 percent will obtain a hardship exemption to file the report in another manner. The estimated burden hours for contractors using the Web-based application is 401,574 (66,929 × 6 hours = 401,574). The estimated burden hours for those not using the Web-based application is 5,408 (676 × 8 hours = 5,408). The estimated total burden for this provision is 406,982 hours, which accounts for those contractors who use a Web-based application to file the report and those granted a hardship exemption from electronic filing.
Section 60-1.7(b)(3)(iii) proposes to require contractors that cannot file using the Web-based application to request a hardship exemption from OFCCP's Director. Contractors that request such an exemption must write to the Director acknowledging the responsibility, explaining their circumstances and requesting the exemption. OFCCP estimates it would take a contractor 30 minutes to prepare the request, including the time required to print, copy and send the document. The estimated total burden for this provision is 338 (676 × 0.5 hours = 338).
Section 60-1.7(c) requires contractors to maintain the records related to its submission of the proposed Equal Pay Report. OFCCP believes this recordkeeping requirement is within the requirements of section 60-1.12(a) and the burden is included in OMB Control Numbers 1250-0001 and 1250-0003.
OFCCP estimates the cost to contractors based on BLS data in the publication “Employer Costs for Employee Compensation” (December 2013), which lists total compensation for management, professional, and related occupations as $51.58 per hour and administrative support as $24.23 per hour. OFCCP estimates that 25 percent of the burden will be management, professional, and related occupations and 75 percent will be administrative support.
The total estimated cost for contractors to either fill out the proposed Equal Pay Report through the Web-based application or request a hardship extension and complete it using another manner, is listed in Table 24 below.
The Department seeks comments on the information collection requirements contained in this proposed rule. Commenters may send their views to the Department in the same way as all other comments (e.g., through the
The OMB and the Department are particularly interested in comments that:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of IT (e.g., permitting electronic submission of responses).
This NPRM proposes specific changes to OFCCP's existing regulation at § 60-1.7 that would make the benefits previously discussed possible. These changes include a proposed new reporting requirement for two categories of covered contractors and subcontractors; specifically, prime contractors and first tier subcontractors that are required to file EEO-1 Reports, and meet the jurisdictional threshold of having more than 100 employees and a contract, subcontract, or purchase order amounting to $50,000 or more that covers a period of at least 30 days, including modifications. This Equal Pay Report would annually require contractors to submit summary compensation data, by sex, race, ethnicity, specified job categories, as well as other relevant data points. These points might include items such as hours worked and the number of employees. The report, as currently proposed, would seek summary W-2 earnings data. For the report, OFCCP is proposing a January 1 through December 31 reporting period, and a report filing window of January 1 to March 31 of the following year. However, OFCCP does not specify the use of W-2 data and the reporting dates in the text of the proposed new regulation. Instead, these details will be in the ICR authorizing the collection and the reporting of data using the report. Electronic submission of the report is being required; however, OFCCP is proposing to create a hardship exemption for those who are unable to perform electronic submission. Contractors and subcontractors would be required to keep their Equal Pay Reports for a period of not less than two years from the date of the making of each report. They would also have to certify that they filed the report with OFCCP from the most recent reporting period when bidding on a Federal contract or subcontract. OFCCP proposes to apply sanctions in 60-1.4(a) and (b) and 60-1.27 to a failure to file a timely, complete and accurate Equal Pay Report and make the appropriate certifications. The information provided on the report would be protected by the Freedom of Information Act to the maximum extent that the information is exempt. It is the practice of OFCCP not to release contractor data where (1) the contractor is still in business, and (2) the contractor indicates, and through the Department of Labor's review process it is determined, that the data are confidential and sensitive and that the release of data would subject the contractor to commercial harm. In the NPRM, OFCCP proposes creating the authority to publish aggregate information based on compensation data collected from the Equal Pay Report, such as ranges or averages by industry, labor market, or other groupings, but only in such a way as not to reveal any particular establishment's or individual employee's data. OFCCP proposes that it would analyze the information collected on the Equal Pay Reports and, along with other available data, develop industry-based standards for compensation differences, and prioritize contractors and subcontractors for evaluation whose summary data show discrepancies that indicate possible compensation violations.
Reports are completed at the individual establishment level, with headquarters completing an individual report as well. Consolidated reports are not required.
A copy of the sample format of the report form and the instructions are provided with the ICR for the purposes of public comment, however, the form itself will not be codified in the regulatory text, but rather through finalization of the process associated with the Paperwork Reduction Act. This three-page report seeks specific information for Federal contractors and subcontractors. Page one of the report requires the contractor and subcontractor establishment to provide identifying information such as location and address, EEO-1 Unit and company numbers, Dun & Bradstreet identifier, and NAICS code(s). Page two of the report is for entering compensation data for all male employees summarized by race, ethnicity, specified job category, and other relevant data points such as the hours worked, and the number of employees in each specified job category. Page three of the report is for entering the compensation data for all female employees summarized by race, ethnicity, specified job categories, and other relevant data points such as the hours worked, and the number of employees in each specified job category. The instructions for completing and submitting the report, as well as definitions, are in a separate document or attachment.
These paperwork burden estimates are summarized as follows:
This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.
For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, this proposed rule does not include any Federal mandate that may result in excess of $100 million in expenditures by state, local, and tribal governments in the aggregate or by the private sector.
OFCCP has reviewed this proposed rule in accordance with Executive Order 13132 regarding Federalism, and has determined that it does not have “Federalism implications.” 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.”
This proposed rule does not have tribal implications under Executive Order 13175 that requires a tribal summary impact statement. The proposed rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The undersigned hereby certifies that the proposed rule would not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.
This proposed rule would have no environmental health risk or safety risk that may disproportionately affect children.
A review of this proposed rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This proposed rule is not subject to Executive Order 13211. It will not have a significant adverse effect on the supply, distribution, or use of energy.
This proposed rule is not subject to Executive Order 12630 because it does not involve implementation of a policy that has takings implications or that could impose limitations on private property use.
This proposed rule was drafted and reviewed in accordance with Executive Order 12988 and will not unduly burden the Federal court system. The proposed rule was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal standard for affected conduct and to promote burden reduction.
Civil rights, Employment, Equal employment opportunity, Government contracts, Government procurement, Investigations, Labor, and Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, OFCCP proposes to amend part 60-1 of Title 41 of the Code of Federal Regulations as follows:
Section 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-1965 Comp., p. 399, as amended by E.O. 11375, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684, E.O. 12086, 43 FR 46501, 3 CFR, 1978 Comp., p. 230 and E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258.
(a)
(i) Is not exempt from the provisions of these regulations in accordance with § 60-1.5;
(ii) Has 50 or more employees;
(iii) Is a prime contractor or first tier subcontractor; and
(iv) Has a contract, subcontract or purchase order amounting to $50,000 or more or serves as a depository of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes:
(2)
(3) Each contractor required under paragraph (a)(1) of this section to file the EEO-1 Report(s) must submit a copy of its most recently filed report(s) to the contracting or administering agency within 30 days after the award of a contract, unless the contractor has submitted its EEO-1 Report(s) to the contracting or administering agency
(b)
(2)
(3)
(ii) Each contractor must submit the Equal Pay Report electronically through OFCCP's web-based filing system by the specified filing deadline, unless the contractor has been granted a hardship exemption under paragraph (b)(3)(iii) of this section.
(iii) The Director may grant a hardship exemption from the requirement to submit the Equal Pay Report electronically where he or she concludes that electronic filing would impose an undue hardship on the contractor. Requests for hardship exemptions are only considered upon the written request of the contractor. The eligibility criteria and application procedures for the hardship exemption are available on the OFCCP Web site. A contractor granted a hardship exemption must submit the Equal Pay Report in the format specified in the notification granting the exemption.
(4)
(A) The contractor is still in business; and
(B) The contractor indicates, and through the Department of Labor's review process it is determined, that the data are confidential and sensitive and that the release of data would subject the contractor to commercial harm.
(ii) OFCCP may publish aggregate information based on compensation data collected from the Equal Pay Report, such as ranges or averages by industry, labor market, or other groupings, but only in such a way as not to reveal any particular establishment's or individual employee's data.
(c)
(d)
(i) Whether it has participated in any previous contract or subcontract subject to the Equal Opportunity Clause in § 60-1.4(a);
(ii) Whether it is currently required to develop affirmative action programs as prescribed under the regulations in this chapter and to file reports set forth in this section;
(iii) And, if so, whether it developed the affirmative action programs;
(iv) Whether it has filed with the Joint Reporting Committee all reports due under the applicable filing requirement; and
(v) Whether it currently holds a Federal contract or subcontract that requires the filing of an Equal Pay Report(s) with OFCCP, and whether it filed an Equal Pay Report with OFCCP for the most recent reporting period, as prescribed by paragraph (b) of this section.
(2)
(e)
(f)
Office of Personnel Management.
Final rule.
The Office of Personnel Management (OPM) is adopting its proposed phased retirement regulations with four minor changes. Phased retirement is a human resources tool that will allow full-time employees to work a part-time schedule and draw partial retirement benefits during employment. The “Moving Ahead for Progress in the 21st Century Act,” or “MAP-21,” requires OPM to publish regulations implementing phased retirement under the Civil Service Retirement System (CSRS) and the Federal Employees' Retirement System (FERS). The final rule informs agencies and employees about who may elect phased retirement, what benefits are provided during phased retirement, how OPM intends to compute the annuity payable during and after phased retirement, and how employees may fully retire after a period of phased retirement. The final rule does not address every administrative detail of the phased retirement process. OPM will be issuing separate guidance to assist agencies and employees with administrative and procedural matters that do not need to be addressed in this rule. Employees may not enter phased retirement or submit applications for phased retirement to OPM until 90 days after publication of this final rule.
Effective November 6, 2014.
Kristine Prentice, (202) 606-0299.
On June 5, 2013, OPM published (at 78 FR 33912) proposed regulations to amend 5 CFR parts 581, 582, 831, 838, 841, 842, 843, 870 and 890, and added 5 CFR part 848 to implement phased retirement pursuant to 5 U.S.C. 8336a and 8142a, as required by section 100121(d) of MAP-21, Public Law 112-141.
Section 100121 of MAP-21 amended chapters 83 and 84 of title 5, United States Code, by adding provisions, at 5 U.S.C. 8336a and 8412a, to permit certain retirement-eligible employees to enter phased retirement. An employee participating in phased retirement is still an employee for all purposes, unless otherwise specified in law or regulation. Initially, OPM will implement the phased retirement working schedule as prescribed in the statute. Thus, the regulations will require an eligible employee who enters phased retirement, with the approval of an authorized agency official, to enter into a 50 percent working schedule and receive approximately 50 percent of what his or her annuity would have been (not including credit for sick leave), had the individual retired completely from Federal service, without electing a survivor annuity. Entry into phased retirement is not guaranteed and must be mutually agreeable to the eligible employee and the employing agency.
Phased retirement is designed to assist agencies with knowledge management and continuity of operations in the short term. Although the main purpose of phased retirement is to enhance the mentoring and training of the employees who will be filling the positions or taking on the duties of more experienced retiring employees, it may also be used to provide employees with the opportunity to share experiences across sections or divisions of an agency. Phased retirement is simply another tool to enable agencies to manage their workforce, promote best practices, and encourage experienced employees to spend some time mentoring the next generation of experts.
OPM received 237 comments regarding the proposed rule; 234 of which were submitted before the close of the public comment period. We decline to address the three comments received after the comment period closed. For the most part, OPM will not address comments that were aimed at benefits not in OPM's purview, nor administrative and procedural issues outside the scope of the regulations.
A member of the public and one agency questioned OPM's decision to issue this rule as a proposed rule. This rule was properly issued as a proposed rule pursuant to section 4 of the Administrative Procedure Act (APA), 5 U.S.C. 553, and does not meet any of the exceptions to the required notice and public comment provisions in 5 U.S.C. 553(b)(3)(A) and (B), and Executive Order 13563. Although OPM is implementing phased retirement with all of the explicit statutory restrictions in place, the rule has been designed to allow OPM to modify both the rule and its accompanying guidance as needed in the future. Phased retirement is not a one-size-fits-all program; an agency and an employee must agree that phased retirement is appropriate for the agency and the employee. After making a decision that phased retirement is appropriate in a given situation, coordination is needed between the employing agency and OPM. Moreover, the technical variables present in the law require OPM to take a measured approach to implementation to ensure a smoother transition to the availability of a new end-of-career option. For these reasons, OPM must provide rules for phased retirement. OPM determined the most appropriate rulemaking process was to issue a proposed rule with public notice and comment to ensure that there is an opportunity for all issues appropriate for regulation to be fully considered and addressed.
Several agencies, commenters, and professional organizations asked questions related to administrative and processing issues outside the scope of these regulations. One commenter suggested that OPM refashion this rule for ease of use by employees so they can make more informed decisions about phased retirement. We decline to make these changes as outside the scope of the rule. Administrative and procedural matters involved with employee elections, agency agreement, coding of personnel actions, processing of forms, and technical and employee information, and other similar issues, are best addressed in guidance, not regulation. This rule is intended to fill gaps in the statutory scheme of phased retirement, and to establish the relative rights and responsibilities of OPM, agencies, and employees with regard to phased retirement. Regulations are not the best means for conveying non-substantive procedural and administrative details regarding the program. OPM has determined that guidance; in the form of advisory documents to agencies, is the most appropriate means to address those matters.
We received many comments concerning benefits or programs administered by other agencies. For example, a few commenters asked about the effect phased retirement would have on Full Time Equivalents. One union suggested that OPM add specific language to the regulations requiring agencies to refrain from making certain budgetary statements and conclusions about the status of employees in phased retirement. OPM cannot address these comments because we do not have authority related to budgetary matters. With regard to Full Time Equivalents, information may be found in existing
We also received numerous comments and questions about the role the Thrift Savings Plan (TSP) plays in many employees' plans for retirement and how employees' access to their TSP funds might be impacted by phased employment. Several professional organizations and agencies voiced similar concerns. For example, some commenters described their plans to rely on withdrawals from the TSP in retirement, particularly prior to age 62. The Federal Retirement Thrift Investment Board is responsible for administering the TSP. Therefore, TSP withdrawal rules and guidelines are outside the scope of this rule. OPM notes that this rule clearly states that participants in phased retirement are still Federal employees; therefore, they may continue to contribute to the TSP, in accordance with TSP rules, during phased employment.
Similarly, several commenters suggested that OPM include more information about the interplay between OPM's benefits and the Social Security Administration's (SSA) benefits within the phased retirement regulations. Commenters requested information about the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO) as it applies to phased retirement. The SSA is responsible for applying the WEP and the GPO. OPM cannot address these comments.
Other commenters asked how OPM plans to administer the offset applicable to CSRS offset annuities. How CSRS annuities will be offset during phased retirement is briefly addressed below and in the rule. But, more information will be provided in guidance to be issued separately. OPM will also provide information about where employees and agencies can look for more information on related topics.
One commenter asked how OPM would address an employee's entitlement to worker's compensation if an on-the-job injury occurs during phased retirement. The Office of Workers' Compensation Programs, Division of Federal Employees' Compensation (OWCP), is responsible for the administration of Federal employees' compensation. OPM cannot address this comment. In general, however, an individual cannot receive both annuity (including a phased retirement annuity) and OWCP non-scheduled award benefits at the same time.
Several commenters requested information about income tax-related issues. The Internal Revenue Service (IRS) is responsible for the tax code, tax regulations and official guidance. To the extent that OPM is responsible for providing information about taxes to annuitants, we will do so in guidance. We decline to address taxes here.
Many commenters simply expressed interest in participating in phased retirement and requested information to that effect. Several commenters submitted duplicate comments and requests for information about when phased retirement would be available. Other commenters asked whether their specific work unit or branch of government would be implementing phased retirement. A commenter suggested that phased retirement should be mandatory for all federal employees beginning at age 55. Another commenter wanted OPM to apply lessons learned from academia's experiences with phased retirement. These comments are outside the scope of the rule and OPM declines to address them further except to state that agencies are responsible for employee retirement counseling; entry into phased retirement is not mandatory and it is just one of several end-of-career options for employees and agencies to consider on a case-by-case basis. Because agencies must decide whether to implement phased retirement, OPM cannot address comments or questions about specific work unit or agency timelines for implementation. However, OPM encourages agencies to evaluate and implement phased retirement as a workforce planning tool as soon as possible. OPM is not attempting to impose participation by employees or agencies on any set schedule.
Multiple commenters inquired about a phased retiree's leave accrual and the lump-sum payment for annual leave. As provided by 5 CFR § 831.1715(g) and § 848.205(i), except as otherwise expressly provided in law or regulation, a phased retiree is treated like any other employee on a part-time tour of duty. The normal leave accrual rules for part-time employees apply to phased retirees. Leave accrual for part-time employees is prorated based on hours in a pay status.
Some commenters questioned whether or not a phased retire is eligible for holiday pay. Under 5 CFR 831.1715(g) and 848.205(i), except as otherwise expressly provided in law or regulation, a phased retiree is treated as any other employee on a part-time tour of duty. The normal rules for part-time employees and holidays apply to phased retirees. A part-time employee is entitled to a holiday when the holiday falls on a day when he or she would otherwise be required to work or take leave. If a holiday falls on a non-workday, part-time employees are not entitled to an “in lieu of” holiday.
A few commenters inquired as to whether or not a phased retiree would be eligible to earn compensatory time off. Overtime pay and compensatory time off generally is earned for work in excess of 8 hours in a day or 40 hours in a workweek. (See 5 U.S.C. 5542 and 5 CFR 550.101 for FLSA-exempt employees and 5 CFR part 551, subpart E, for FLSA-covered employees.) Phased retirees will normally not work more than 40 hours in a biweekly pay period (see limited exceptions discussed at 5 CFR 831.1715(h) and 848.205(j)), but they potentially could earn overtime pay or compensatory time off for work in excess of 8 hours in a day.
Some commenters and one agency, asked for clarification on work in excess of the part-time schedule and the ability of a phased retiree to earn compensatory time off for travel. Under 5 U.S.C. 5550b and 5 CFR part 550, subpart N, compensatory time off for travel is earned by an employee for time spent in a travel status away from the employee's official duty station when such time is not otherwise compensable. A phased retiree is eligible to earn compensatory time off for travel under the normal rules.
Official travel time during periods when a part-time employee is otherwise scheduled to work counts as hours of work. Treatment of travel time outside an employee's officially established part-time schedule depends on the applicable rules. (
If a phased retiree's travel time outside of the officially established part-time schedule does not count as hours of work under the applicable rules, it
Multiple commenters inquired about eligibility for receiving voluntary separation incentive payments (VSIP) when entering phased retirement or when leaving phased retirement to enter full retirement. The VSIP authority, also known as buyout authority, allows agencies that are downsizing or restructuring to offer employees lump-sum payments of up to $25,000 as an incentive to voluntarily separate from Federal service. An employee entering phased retirement is not separating from Federal employment and is not eligible for a VSIP. An employee leaving phased retirement to separate and enter full retirement may be eligible for a VSIP if the eligibility criteria in 5 U.S.C. Chapter 35, subchapter II, and the implementing regulations are met at that time.
Multiple commenters also inquired about eligibility for voluntary early retirement in conjunction with entry into phased retirement. Employees eligible under an approved voluntary early retirement authority (VERA) are not eligible for phased retirement. The statutory definition of “retirement-eligible employee” in 5 U.S.C. §§ 8336a and 8412a expressly limits eligibility to phased retirement to individuals who meet the requirements for retirement under 5 U.S.C. 8336(a) and (b) for CSRS and 5 U.S.C. 8412(a) and (b) for FERS. These subsections establish eligibility for optional retirement. The provisions concerning early retirement eligibility are set out at 5 U.S.C. 8336(d) for CSRS and 5 U.S.C. 8414 for FERS. Therefore, employees eligible under a VERA do not meet the statutory definition of a “retirement-eligible employee” for entry into phased retirement.
One agency remarked that the use of phased retirement may make VERA less attractive to employees when an agency is downsizing. OPM disagrees because employees eligible for VERA are not eligible for phased retirement. Any further discussion of the impact of phased retirement on the use of VERA is outside the scope of these regulations.
Multiple commenters inquired about a phased retiree's treatment during a reduction in force (RIF). An employee in phased retirement is treated as a part-time employee for the purposes of RIF. The treatment of a part-time employee during a RIF is outside the scope of this regulation and is covered in 5 CFR part 351.
One agency and one commenter asked whether a phased retiree would be subject to a furlough. An employee in phased retirement is a part-time employee for the purposes of a furlough and as such, is subject to furlough in the same manner as part-time employees in regular employment. The treatment of part-time employees for the purposes of furloughs is outside the scope of these regulations.
One commenter asked whether work schedules would be negotiable or fixed. Work schedules for employees represented by a labor organization are generally negotiable within the bounds of governing law and regulation, but the negotiability of a particular proposal relating to work schedules of a phased retiree, as for any part-time employee, will depend on the specific facts of each situation. Negotiability of work schedules is outside the scope of these regulations and will have to be addressed through regularly established employee relations processes.
OPM received questions about the potential for outside employment while in phased retirement and the option for employment as a reemployed annuitant after the phased retiree enters full retirement. During a period of phased employment, phased retirees are still employees, and are bound, as such, by ethics rules and any restrictions on outside employment. We decline to address the issue of employment as a reemployed annuitant after a period of phased retirement because it is outside the scope of this rule.
Two agencies expressed interest in how the use of phased retirement would impact an agency's authority to hire reemployed annuitants. One agency asked if phased retirement was intended to be a replacement for the use of reemployed annuitants. Phased retirement and reemployment of annuitants are both tools that an agency may use to meet workforce planning goals. Phased retirement is not meant to replace the reemployment of annuitants. Whether the use of phased retirement will impact an agency's use of reemployed annuitants is outside the scope of these regulations.
Several commenters requested information about the appeals process available to phased retirees. They questioned, whether, in the final regulations, OPM intends to provide an appeals process for employees who believe they were unfairly denied the opportunity to participate in phased retirement initially or who were unfairly denied consent to return from phased retirement to regular full-time employment. Similarly, other commenters made excellent observations about circumstances where employees may dispute an agency's decision. All of these issues are best addressed in guidance. Participation in phased retirement is entirely voluntary and requires the mutual consent of both the employee and employing agency. A retirement-eligible employee “may elect” to enter phased retirement status if she meets the eligibility criteria. This discretionary language regarding the employee's decision describes the voluntary nature of phased retirement. Also, an employee is not entitled to enter into phased retirement. Other than the new statutory and regulatory requirements unique to phased retirement, employees in phased retirement retain the same rights and responsibilities as in regular employment. Any complaint procedures, including any applicable administrative or collective bargaining grievance procedures that are available in regular employment remain available to phased retirees, but no new rights are provided.
One commenter, presumably a CSRS employee not subject to OASDI tax, asked to be able to contribute to Social Security during phased retirement. Social Security coverage is governed by existing law and the amendments made by section 100121 of the MAP-21 made no change to the existing law. Employees who are excluded from Social Security coverage at the time they enter phased retirement continue to be excluded from Social Security coverage during phased retirement.
Another commenter, also presumably a CSRS employee, asked OPM to clarify whether he would be able to receive more than 80 percent of his pension after phased retirement. In general, under CSRS an annuity may not exceed 80 percent of the average pay of the employee (see 5 U.S.C. 8339(f)). Therefore, the amount of the phased retirement annuity computed under 5 U.S.C. 8339, before it is multiplied by the phased retirement percentage, cannot exceed 80 percent of the employee's average pay. Likewise, the amount of the fully retired phased component of the composite annuity computed under 5 U.S.C. 8339, before it is multiplied by the working percentage, may not exceed 80 percent of the employee's average pay (unless credit for the employee's unused sick leave raises the annuity above the 80 percent threshold). If a CSRS employee exceeds the 80 percent limitation either before or during phased retirement; his excess contributions will be refunded back to him at his full retirement.
Several commenters requested information concerning changes to the eligibility rules and employee contributions for the Federal Employees Dental and Vision Program (FEDVIP), the Federal Long Term Care Insurance Program (FLTCIP), and the Federal Flexible Spending Account Program (FSAFEDS). The authorizing legislation for phased retirement did not alter the laws or regulations governing the FEDVIP, the FLTCIP, or the FSAFEDS programs. A phased employee may elect to participate in these benefit programs and work as a phased retiree if he/she meets all benefit eligibility requirements. Also, because a phased retiree is an active Federal employee, the rules governing enrollment and participation in these programs are the same as for all other eligible employees.
One commenter requested information concerning an employee's bargaining unit status eligibility under a Master Agreement if the employee enters phased retirement. Whether an employee is in a particular bargaining unit depends on the bargaining unit's description found in the Certification of Representative issued by the Federal Labor Relations Authority. Phased retirees are part-time employees. Therefore, it is possible that bargaining unit status could change, for example, if full-time employees are covered by that particular bargaining unit's Certification of Representative, but part-time employees are excluded from that bargaining unit.
One agency submitted a question concerning employees who elect phased retirement and are subsequently found to be in the wrong retirement system. Phased retirees are covered by the Federal Erroneous Retirement Coverage Corrections Act (FERCCA), Title II of Public Law 106-265, 114 Stat. 762, enacted September 19, 2000, and have the same rights under the FERCCA as before entry into phased retirement. OPM expects coverage errors to be addressed by the agencies prior to an employee's entry into phased retirement.
Below, OPM describes in more detail the comments we received which are specifically applicable to the proposed regulations themselves. In general, these comments will be addressed in regulatory part and section order. Certain comments referring to regulatory parts 831 and 848 are addressed together for the convenience of the reader. In those instances, where the comments require different answers OPM will first address part 831 and then part 848. If a section is not addressed, either OPM did not receive comments referencing that section, or the comments were addressed more generally above.
There were three comments regarding garnishment. One commenter asked that the new provision at 5 CFR 581.306(d) identify the responsible office within agencies for garnishment notification. This rule does not modify the other provisions related to processing garnishment orders found in 5 CFR parts 581 and 582. The agents designated for service of process for garnishment orders are listed in Appendix A of part 581 and Appendix A of part 582. Appendix A presently lists the following address for garnishment of payments of retirement benefits under CSRS and FERS: “Associate Director for Retirement and Insurance, Office of Personnel Management, Court Ordered Benefits Branch, P.O. Box 17, Washington, DC 20044.” OPM notes that parts 581 and 582 may be further updated in a separate rule.
One agency inquired whether court orders, including garnishments, would be included in the phased retirement application packages and, if not, inquired as to how agencies would otherwise receive such court orders. This rule does not revise the procedures or mechanisms for submitting court orders, including divorce decrees and garnishment orders, to the appropriate officials at the appropriate agencies. Rather, it adds one additional notice requirement when an employee enters phased retirement and has a garnishment order on record. Pursuant to new § 581.306(d), when an employee enters phased retirement, agencies are required to notify the party who caused the garnishment order to be served that the obligor is now entitled to a phased retirement annuity.
Another agency requested more information about the level of coordination required between the agencies and OPM with regard to garnishments. OPM addressed the issue of garnishment in the supplementary information to the proposed rule. Phased retirement annuities, like regular Federal annuities, will not be subject to commercial garnishments under 5 CFR part 582, and only the part-time pay received during phased employment will continue to be subject to commercial garnishment. Paragraph (d) is added to § 581.306 to account for employees who enter phased retirement status and who are subject to non-commercial garnishment orders (such as child support orders).
Governmental entities will still be obligated to honor the non-commercial garnishment order as it pertains to ongoing part-time pay, subject to the rules set forth in part 581 of title 5, of the Code of Federal Regulation. The amounts subject to garnishment may have to be adjusted at the time an employee enters phased retirement as there are certain caps on the percentage of salary that may be garnished. However, paragraph (d) imposes an additional obligation on the governmental entity to notify the party who caused the legal process to be served that the obligor is now entitled to a phased retirement annuity and to direct the party to the designated agent at OPM who is responsible for the disbursement of retirement benefits. The onus is then on the obligor to submit additional income withholding orders or other garnishment orders to OPM directly if the obligor also seeks to garnish the employee's phased retirement annuity.
A commenter inquired about which level of the agency or sub agency would be responsible for approving or denying phased retirement applications. The regulations currently designate the agency head as the authorized approving official and also allow that approving official to delegate the responsibility as appropriate in §§ 831.1702 and 848.102. Therefore, an agency has the discretion to designate the appropriate approving officials.
A number of commenters questioned whether OPM properly excluded them from participation in phased retirement by defining “full-time” as an officially established recurring basic workweek consisting of 40 hours within the employee's administrative workweek (or 80 hours per biweekly pay period for employees with a flexible or compressed work schedule) under 5 CFR 831.1702 and 848.102. For example, one commenter from the judicial branch stated that she presently works a 36-hour workweek, which she stated was considered full-time for purposes of the Federal Employees Health Benefit Program (FEHB). In actuality, the FEHB law does not provide that a 36-hour workweek is a full-time schedule; it merely provides that employees with certain part-time schedules referenced in 5 U.S.C. 3401 (16 to 32 hours per week) are subject to a reduced, prorated Government contribution toward FEHB premiums. The amount of the Government contribution does not change the nature of a schedule as full-time versus part-time. The commenter would not be permitted to elect phased retirement because she does not meet the definition
Several commenters suggested that OPM regulate phased retirement more stringently; others suggested the opposite. For example, a number of comments suggested making it more difficult for agencies to deny entry into phased retirement. Still others advised that fewer restrictions were better. Some agency commenters recommended that OPM provide more information on aspects of the phased retirement program that impact internal processing issues and procedures. OPM declines to further regulate phased retirement at this time. Moreover, many of the issues raised by these commenters are more properly addressed in Benefits Administration Letters and other guidance to be promulgated by the Director of OPM in conjunction with this final rule.
Numerous commenters, including several unions and employee organizations, objected to the eligibility requirements described in §§ 831.1711 and 848.201. Several commenters objected to the requirement in § 831.1711(a) and § 848.201(a) which states that in order to enter phased retirement, the employee must have been employed on a full-time basis for not less than the 3-year period ending on the effective date of entry into phased retirement status. A few commenters suggested that OPM allow some employees who have part-time service in the preceding 3-year period to enter phased retirement with a smaller or prorated annuity. One commenter suggested that annuitants should be allowed to come back to mentor during an emergency situation like fighting a large forest fire. Another commenter asked that we allow persons who have retired since phased retirement was enacted to come back to work under phased retirement. OPM does not have the authority to waive or adjust the requirement that eligible employees must have been employed full-time for the 3 years preceding entry into phased retirement. This is an express statutory requirement of 5 U.S.C. 8336a(b)(1) and 8412a(b)(1).
Many commenters, including several unions and employee organizations, also objected to the requirement in § 831.1711(b) and § 848.201(b) that describes, for the purposes of phased retirement only, a retirement-eligible employee as an employee, who if separated from service, would meet the requirements for retirement under subsections (a) or (b) of 5 U.S.C. 8336 and 8412. Several commenters opined that OPM is arbitrarily excluding certain groups of employees from participation in phased retirement. A few commenters noted that they became Federal employees later in life and felt unfairly excluded from phased retirement because of their late entry into Federal careers. Many commenters suggested that OPM allow persons with at least 15 years of service to participate in phased retirement, while others suggested that OPM allow those who have at least 5 years of service and who have reached at least age 62 to participate. Some commenters suggested that OPM should waive the eligibility requirements for employees in receipt of military retired pay. Two commenters asked for a waiver specific to their worksite. Some commenters argued that OPM should waive the age requirements in certain situations; others suggested that OPM simply restrict phased retirement using any of these criteria: Prior experiences, total number of years of service, or willingness to mentor others. OPM cannot modify the regulations to permit expansion of the eligibility criteria to include these employees. Under CSRS, participation in phased retirement is limited to those persons eligible for an immediate retirement with at least 30 years of service and who are at least age 55 or who have at least 20 years of service and who are at least age 60.
Two commenters asked why OPM would exclude most retirement-eligible employees who are subject to mandatory retirement from entry into phased retirement under § 831.1711(c) or § 848.201(c). Both suggested that employees subject to mandatory retirement might want to spend the last couple of years of their career in phased retirement mentoring younger employees, particularly if they have already served twenty years, but are waiting until their mandatory separation age. OPM is unable to make the suggested changes. Except for certain Customs and Border Protection Officers hired prior to 2008, law enforcement officers, firefighters, nuclear materials couriers, air traffic controllers, customs and border protection officers, members of the Capital Police and members of the Supreme Court Police are excluded from participation in phased retirement under 5 U.S.C. 8336a(a)(9)(B) and 8412a(a)(9)(B). Further, sections 8336a and 8412a require OPM to compute phased retirement annuities using the annuity formulas under 5 U.S.C. 8339 and 8415 applicable to regular employees; an outcome that employees subject to the higher retirement deductions would not want, if it were allowed, because it would entail giving up their higher annuity benefits computed using a higher accrual rate.
Numerous commenters asked OPM to immediately allow a wider range of permissible working percentages. OPM declines to do so at this time. Under 5 U.S.C. 8336a(b)(2)(A) and (B) and 8412a(b)(2)(A) and (B), the working percentage for employees in phased retirement must be 50 percent unless the Director of OPM determines that other percentages are appropriate. We have determined that the working percentage should remain at 50 percent for the time being. The implementation of phased retirement requires a complex realignment of end-of-career planning for both individuals and agencies. Multiple administrative and technical processes either have to be established or adjusted to accommodate phased retirement. Furthermore, OPM has determined that the working percentage should remain at 50 percent, at least during the beginning of the program, to allow time to assess the impact of phased retirement processing on regular retirement processing.
Several other commenters suggested that under §§ 831.1712 and 848.202 OPM has promulgated too narrow a “working percentage,” arguing that OPM does not have the authority to specify a single “working percentage” of 50 percent. Instead, they assert that the
Other commenters suggested that we provide a range of working percentages to accommodate other work schedules. As noted in the supplementary information of the proposed rule (see 78 FR 33914), the statute permits a working percentage of 50 percent (i.e., a halftime work schedule) and contemplates additional working percentages, at OPM's discretion. Although a working percentage of 50 percent is the only working percentage permitted under §§ 831.1712 and 848.202, these sections have been drafted using language to easily allow OPM to amend the regulations in the future to allow working percentages other than 50 percent, if and when OPM determines that such an amendment is appropriate. OPM will be evaluating the phased retirement program to determine if different “working percentages” should be allowed. For now, a phased retiree will not be permitted to have a working percentage other than 50 percent.
One commenter suggested that a step-down approach to the working percentage would enable phased retirement to be more widely adopted. Sections 8336a(b)(2)(C) and 8412(a)(b)(2)(C) specify that “[t]he working percentage for a phased retiree may not be changed during the phased retiree's phased retirement period.” Therefore, OPM cannot authorize agencies to allow phased retirees to change their working percentage during phased retirement.
Some commenters asked OPM to allow phased employees to stagger their work schedules over months and not pay periods. As provided by 5 CFR 831.1712 and 848.202, the number of officially established hours per pay period to be worked by an employee in phased retirement status must equal one-half the number of hours the phased retiree would have been scheduled to work had the phased retiree remained in a full-time work schedule and not elected to enter phased retirement status (i.e., 40 hours per pay period for most employees). The specific hours the phased retiree works is subject to agency work schedule policy and any applicable negotiated agreement. For example, a phased retiree may participate in an agency's flexible or compressed work schedule program under subchapter II of 5 U.S.C. 6101 and subpart D of 5 CFR part 610 on the same basis as any other part-time employee.
One commenter suggested that OPM allow phased retirees to work at least 1,040 hours per year (50 percent of 2,080 hours per work year) to offer greater flexibility to potential retirees while allowing federal agencies to benefit from phased retirees' knowledge and experience. The commenter's suggestion cannot be implemented because a phased retiree must be a part-time employee with a regularly scheduled tour of duty. A phased retiree may not work on an intermittent basis (i.e., without a regularly scheduled tour of duty). For this reason, the required working percentage must be met on a pay period basis rather than an annual basis. We also note that using an annual approach would impose a more burdensome administrative and recordkeeping requirement on the agencies and payroll providers.
A commenter questioned whether or not a phased retiree would be allowed to be placed into an intermittent schedule status. The commenter also noted that the proposed regulations appear to imply a fixed part-time tour of duty. Although unclear, the commenter seemed to be concerned as to whether such individuals would have their phased retirement benefits discontinued, or would be required to be removed from the phased retirement program. In certain circumstances, outside the context of phased retirement, employees may be moved to an intermittent tour (i.e., no weekly work guarantee). An intermittent employee does not have a scheduled tour of duty. A phased retiree must be a part-time employee with a scheduled tour of duty equal to one-half the number of hours the phased retiree would have been scheduled to work had the phased retiree remained in a full-time work schedule and not elected to enter phased retirement status (i.e., 40 hours per pay period for most employees). The change to an intermittent schedule is not allowed for an employee in phased retirement. An employee in phased retirement wishing to make such a change in work schedule would need to opt out of the phased retirement program by returning to regular employee status before making the schedule change. A phased retiree may have a part-time flexible schedule under 5 U.S.C. 6122, but the number of hours worked each biweekly pay period must be fixed at 40 hours.
A number of commenters inquired whether employees in supervisory or managerial positions would be eligible to participate in phased retirement. Each agency has the discretion to determine whether or not phased retirement would be appropriate for an employee in a supervisory or managerial position just as for non-supervisory positions.
Several commenters expressed interest in how an agency would use its discretion to approve or deny requests to enter phased retirement. Two commenters inquired as to whether or not there were specific criteria an agency must use when approving or denying requests. Similarly, an agency asked if there would be guidelines in place to ensure consistent application among managers. Yet another agency inquired about how an agency could implement its discretion based on the regulations and avoid discrimination concerns. OPM agrees that an agency should have criteria in place that guide decisions to approve or deny applications for phased retirement. Such criteria will provide transparency to the approval process by allowing managers and employees to understand the basis for an approval or denial decision. Therefore, we are amending the regulations at §§ 831.1713(e) and 848.203(e) to require agencies to establish written criteria to be used when approving or denying applications for phased retirement. Agencies should be aware that some matters relating to phased retirement, including procedures and arrangements for adversely affected employees, may be subject to collective bargaining obligations.
One agency questioned whether an agency has the discretion to determine that it will not approve any applications for phased retirement. Phased retirement is a workforce planning tool that an agency may choose to use when appropriate. At the same time, phased retirement is not an employee entitlement. Agencies have the discretion to approve some, all, or none of the phased retirement applications received from employees. Phased retirement is just one of many tools designed to provide agencies with more flexibility in managing their workforces, therefore OPM encourages agencies to utilize phased retirement when
Multiple commenters expressed concerns about the length of time that an employee may participate in phased retirement. Some agencies inquired as to whether OPM intended phased retirement to be open-ended or time-limited. OPM recognizes that for most employees phased retirement will be of a limited duration. However, there may also be instances where agencies may find it useful for phased retirees to serve for longer periods of time. To allow agencies the maximum amount of flexibility in using phased retirement as a workforce management tool, OPM is leaving the establishment and use of time limits to the discretion of the agencies.
A number of commenters, employees and agencies alike, requested that OPM impose a maximum period of time for an employee to spend in phased retirement. OPM disagrees that a maximum time limit is needed for phased retirement. An agency's need for an employee in phased retirement will most likely vary on a case-by-case basis; therefore, agencies should have flexibility in determining the amount of time any employee may spend in phased retirement.
Some commenters remarked that the use of a time limit as a condition of approval could potentially create a coercive situation. Other commenters noted that the use of a time limit is a way of establishing mandatory separations or imposing an adverse action upon the employee. OPM disagrees with these suggestions. By allowing the use of a time limit, the agency and the employee may choose a mutually agreeable time limit at the start of phased retirement as a tool to set clear expectations for both the agency and the employee. If an employee does not like the proposed time limit, he or she has the freedom to withdraw the application for phased retirement. Once a time limit agreement is in place, the employee still has the discretion to enter full retirement status at any time prior to reaching the established time limit or request approval from the agency to return to regular employment. At the end of the agreed upon time limit, the employee has the option to return to regular employment with the approval of the current agency, or to transfer to another agency (where phased retirement may or may not be continued), or to enter full retirement status. If an agency needs to remove an employee in phased retirement prior to the end of the time limit agreement due to budget restrictions, performance, or conduct, the agency may continue to use existing workforce authorities such as removal for performance or conduct; transfer of function or reduction in force; as appropriate.
Several commenters inquired about the ability of an employee in phased retirement to transfer to another agency. To do so, the employee must request approval from the new agency to continue in phased retirement upon transfer just as he or she did when entering phased retirement in the current agency. OPM will provide additional procedural information on transferring an employee in phased retirement in guidance.
One commenter noted that the agency would have to take an adverse action to separate a phased retiree who has no time limit agreement. While in phased retirement, an employee continues to have the same performance and conduct requirements as in regular employment. Thus, an employee in phased retirement who has poor performance or conduct problems will be subject to the appropriate action, up to and including removal. The individual retains the same due process rights as any other employee in a similar situation.
OPM also received several comments regarding employee contributions to FERS and CSRS. During phased employment, retirement deductions for FERS and CSRS, Social Security (as appropriate) and Medicare taxes, as well as income tax will continue to be withheld from the pay the employee receives from the employing agency during phased employment. Those deductions and taxes are made at the normal deduction and tax rates and are based on the pay the employee actually receives during phased employment, not on the amount the employee would have received had the employee continued to work full-time.
A commenter inquired about the possibility of liquidating annual leave for those employees who receive approval for phased retirement. The commenter suggested that he would like the ability to roll over the dollar value of his annual leave directly into his traditional (non-Roth) or Roth TSP. OPM does not have the statutory authority to permit liquidation of annual leave upon an employee's election of phased retirement.
Some commenters asked if phased retirement would affect an employee's annual leave ceiling. As provided by 5 CFR 831.1715(g) and 848.205(i), except as otherwise expressly provided by law or regulation, a phased retiree is treated as any other employee on a part-time tour of duty. The normal leave accrual rules for part-time employees apply to phased retirees. Leave accrual for part-time employees is prorated based on hours in a pay status.
Some commenters questioned if phased retirees would be eligible for within grade increases. A phased retiree is treated just as any other employee on a part-time tour of duty.
One commenter questioned why the proposed rule states that Federal Employees Health Benefit Program (FEHB) and Federal Employees' Group Life Insurance Program (FEGLI) contributions will be deducted from the phased retiree's pay, while the definition of “net annuity” in 5 CFR 838.103 lists health and life insurance premiums among the deductions from a phased retiree's gross annuity. The definition of “net annuity” in 5 CFR 838.103 in used in applying regulations dealing with court orders, which apply to all retirees, not just phased retirees. Most retirees have health and life insurance premiums deducted from their annuities; therefore, the definition of “net annuity” must reference those premiums. In the case of phased retirees, the references to health and life insurance premiums in the definition of “net annuity” may be disregarded, since during phased retirement the FEHB and FEGLI enrollments will stay with the employing agency and premiums will be deducted from a phased retiree's pay. Also, the FEHB employer contribution will be the same as for full-time
Phased employment service is creditable toward the 5 years of service needed to continue FEHB coverage as an annuitant. In the event an employee ends his or her phased retirement for full retirement, FEHB benefits will continue if the employee meets all eligibility requirements as of the separation from service on which the full retirement is based.
One commenter asked if management can end phased retirement at its discretion; similar to the removal of a reemployed annuitant, the removal of an employee on a temporary appointment, or for reasons such as budget or poor performance. Employees in phased retirement remain employees on permanent appointments. The phased retirement statute specifies that an employee may return to regular employment by mutual agreement of the agency and the phased retiree. Agencies may continue to use existing workforce authorities such as removal for performance or conduct; transfer of function or reduction in force, as appropriate, should the agency need to limit, change or end the employment of an employee in phased retirement. Agencies should be aware that some matters relating to phased retirement, including procedures and arrangements for adversely affected employees, may be subject to collective bargaining obligations.
One union commented that OPM's deeming an employee to have elected full retirement results in a needlessly harsh outcome if the employee were separated from phased employment and not reemployed elsewhere in the Federal government within 3 days. The organization suggested that OPM modify the rule to allow 30 days to elapse before deeming an election of full retirement to have taken place. OPM declines to adopt this suggestion because §§ 831.1732(b) and 848.402(b) require the phased retirement annuity to end upon an employee's separation from service as a phased retiree. OPM considers a separation of more than 3 days after ending phased employment to be just like any other 3 day break in service affecting retirement coverage. Here, the difference is that the composite retirement annuity will commence the day after separation. Sections 831.1731(b) and 848.401(b) must be read in conjunction with §§ 831.1732 and 848.402, since the later sections state that a phased retirement annuity terminates upon separation from service and the composite retirement annuity begins the next day. From an administrative standpoint, it does not make sense for OPM to continue phased retirement annuity payments for even a 30 day window where an improper payment might result. Employees are responsible for taking the appropriate actions to return to full employment, accept a different non-phased retirement part-time schedule, or to fully retire. Procedures are already in place that would enable a losing or gaining agency to modify an employee's retirement records where the employee's apparent inaction should be corrected.
A commenter and an agency noted that under § 831.1732(a), unlike retirements under the regular CSRS rules, a phased retiree's composite annuity would commence the day after separation and wondered about the rationale OPM used to justify this change. Section 848.402(a) has the same effect. In analyzing the effect of phased retirement on employees, OPM determined that for a phased retiree, this change in practice was necessary to ensure continuity of income and proper crediting of service in the context of the composite retirement annuity. Therefore, under §§ 831.1732(a) and 848.402(a), the composite retirement annuity commences the day after the employee's separation from service.
One commenter suggested that OPM increase the appeal of phased retirement by adjusting the CSRS annuity formula upward to make phased retirement more attractive to employees. Other commenters suggested that OPM similarly modify the FERS annuity formula as well. The commenters opined that more generous incentives would motivate CSRS and FERS employees to remain in Federal service as phased retirees. We also received comments suggesting that FERS employees should receive their full unreduced pensions upon final retirement to make up for the perceived shortfalls in their pensions as a result of not having coverage under CSRS. OPM cannot make the suggested changes because OPM has no authority to change the annuity formulas and calculations established by Congress in statute. Moreover, phased retirement is strictly optional and its attractiveness, or lack thereof, will not alter the basic structural differences between CSRS and FERS. If phased retirement is unattractive to an employee, then the employee is under absolutely no obligation to enter into it.
OPM also received several questions about how changes in an employee's “high-three” average pay would be addressed during phased retirement. Upon entry into phased retirement, OPM will compute the “phased retirement annuity” using the three highest consecutive average pay years the employee had accrued up until that point. During phased retirement, if a new high-three average pay were to accrue, it would be reflected in the computation of the composite annuity. At full retirement, the “phased retirement annuity” portion of the employee's annuity would not change; but, the “fully retired phased component” portion would take the new average pay into account. Therefore, a new high-three average pay achieved during phased retirement would only affect the portion of the total (composite) annuity (i.e., the “fully retired phased component” of the composite annuity), but not the portion of the composite annuity consisting of the “phased retirement annuity.”
Two commenters noted that it appeared that OPM had made an error in describing the computation of a phased retirement annuity in the Benefits and Computation section of the supplementary information. We agree. The statement should have read “[w]hile working part-time during phased retirement, employees will also receive annuity payments, consistent with the retirement benefits they were entitled to prior to entering phased retirement status,
OPM received a few comments concerning the methodology we will employ in applying the required offset to CSRS Offset annuities based on the employee's entitlement to Social Security benefits. Upon entry into phased retirement, the offset will be computed by first determining the offset amount that would have applied had the employee fully retired instead electing phased retirement and then multiplying that offset amount by the phased retirement percentage. This
One union asked OPM to consider allowing overtime pay earned under 19 U.S.C. § 267(a) to be considered in base pay for the purposes of computing the composite retirement annuity. We decline to make the requested change. The phased retirement statute requires phased retirees to be deemed to be full-time for the purpose of determining basic pay for either life insurance or the composite annuity. The law also limits the pay subject to retirement deductions based on this concept of full time. As a result, hours worked above and beyond a 40-hour work schedule will not be considered basic pay for either life insurance or the composite annuity.
Several commenters questioning how employees will be credited for their unused sick leave in the computation of the composite annuity received at final retirement. The commenters appear to be concerned that OPM is not correct in using division where multiplication might be expected. However, the statute expressly addresses this issue. The division of unused sick leave is appropriate. The formula is designed to ensure that employees receive full credit for their unused sick leave balance in the computation of the composite annuity. The unused sick leave balance is credited in the fully retired phased component of the composite annuity calculation before that component gets multiplied by the working percentage. Without any adjustment made to the unused sick leave balance, the value of the unused sick leave in the composite annuity would be proportionally reduced when the fully retired phased component gets multiplied by the working percentage. Dividing the unused sick leave balance by the working percentage and using the result in the computation of the fully retired phase component of the composite annuity ensures that the appropriate credit for the unused sick leave is retained in the annuity after the fully retired phased component is multiplied by the working percentage.
For example, if a regular CSRS employee separates for retirement with 6 months of unused sick leave credit (1,044 hours) and a high-3 average pay of $80,000, the value of the unused sick leave credit would equal $800 ($80,000 × 2 percent × 6/12). If a CSRS phased retiree with a working percentage of 50 percent separates for full retirement with 6 months of unused sick leave credit (1,044 hours) and a high-3 average pay of $80,000, the value of the unused sick leave credit without any adjustment would equal $400 ([$80,000 × 2 percent × 6/12] × 50 percent), which is $400 less than the value that should be attributed to the unused sick leave credit. Dividing the sick leave credit by the working percentage and using the result in the fully retired phased component would result in 12 months credit (2,088 hours) for unused sick leave (6 months divided by 50 percent equals 12 months; 1,044 hours divided by 50 percent equals 2,088 hours). The resulting value of the unused sick leave in the composite annuity, after applying 12 months credit for the unused sick leave in the fully retired phased component, equals $800 ([$80,000 × 2 percent × 12/12] × 50%), the full value that should be attributed to the unused sick leave credit.
This analysis applies equally to the FERS computation. If a FERS employee retires at age 61 with a high-3 average pay of $80,000 and 6 months unused sick leave credit, the value of that unused sick leave credit would be $400 ($80,000 × 1% × 6/12). To ensure that a phased retiree with a working percentage of 50 percent separating at age 61 with a high-3 average pay of $80,000 and 6 months unused sick leave credit would get $400 credit for the unused sick leave, divide the sick leave credit by the working percentage and use the result (6 months divided by 50 percent equals 12 months) in the computation of the fully retired phased component ([$80,000 × 1% × 12/12] × 50% = $400).
Several employees requested that we consider allowing the use of unused sick leave in both the phased retirement annuity component and the fully retired phased component. OPM cannot make the suggested change. Under §§ 8336a and 8412a, of title 5, United States Code, unused sick leave is available for use in the annuity computation only upon an employee's entry into full retirement.
We received one comment from an employee organization which noted that §§ 848.701 through 848.703 did not appear to have equivalent CSRS sections. The organization suggested that OPM fix this perceived oversight as an equitable consideration. We would direct the employee organization to §§ 831.1761 through 831.1763 which are the corresponding CSRS sections to the FERS sections they cited. No changes to the regulations are required.
One agency commented that the first sentence in § 831.1771(b) was difficult to read. We agree and have modified the sentence for clarity. The word “reemployment” has been substituted for the words “the employment” and the term “upon reemployment” has been substituted for “upon employment”.
Many comments addressed the necessity of requiring an employee in phased retirement to spend 20 percent of work time in mentoring activities. One agency commented that the regulations should allow an agency and the employee to determine the number of mentoring hours collaboratively instead of requiring mentoring 20 percent of the time. The authorizing statute clearly requires that not less than 20 percent of hours worked must consist of mentoring. Therefore, OPM cannot adopt this suggestion.
One union and several individual commenters remarked that a more specific definition of mentoring should be included in the regulations. The same union also commented that mentoring should be defined as peer mentoring. Mentoring can encompass a wide range of activities that allow for the transfer of knowledge and skills from one employee to others. To provide agencies with the maximum amount of flexibility in meeting the mentoring requirement we have purposefully included a broad definition of mentoring so that employees and managers would have options in choosing mentoring activities that would best fit an agency's needs.
Several commenters suggested that the regulations should include specific criteria for a establishing a formal mentoring program as well as procedures for monitoring compliance with the mentoring requirement. Participation in a formal mentoring
Some commenters also indicated that agencies should be encouraged to use best practices when assigning mentoring activities. While OPM does encourage agencies to use best practices and any other available resources when implementing the mentoring requirement, such information is outside the scope of this rule. A professional organization inquired if a phased retiree could meet the mentoring requirement by participating as volunteer mentor for students in school or community programs while on leave or during other non-work periods. While we appreciate the efforts of all federal employees who participate in school and community volunteer activities during non-work periods, such volunteer efforts will not count toward the mentoring requirement. The mentoring requirement can only be met when an employee spends 20 percent of paid working hours in mentoring activities.
One agency and one union noticed that our amendment to § 838.242(b) omitted a reference to how OPM will credit unused sick leave under FERS in computing an annuity subject to a court order. We agree and we have made the change. The sentence now reads as follows: “Unused sick leave is counted as “creditable service” on the date of separation for an immediate CSRS or FERS annuity.”
Several commenters inquired as to how OPM plans to apply the 1.1 percent computation that applies to FERS annuitants who separate from service after reaching at least age 62 with at least 20 years of service to phased retirees during phased retirement and again at full retirement. Because the 1.1 percent annuity computation is predicated on the eligible FERS employee having reached at least age 62 with at least 20 years of service, OPM will apply it to both the phased retirement annuity and the composite annuity as appropriate. Under 5 U.S.C. 8412a(c)(1), OPM must compute the phased retirement annuity using the appropriate amount of annuity payable under 5 U.S.C. 8415 as if, on the date on which she enters phased retirement, the FERS employee had separated from service and retired under section 8412(a) or (b). For example, a FERS employee who is otherwise eligible to receive the 1.1 percent annuity computation at retirement would, upon entry into phased retirement, have her annuity computed using the 1.1 percent annuity computation. However, a FERS employee who enters phased retirement prior to reaching age 62 would not receive the 1.1 percent annuity computation in her phased retirement annuity. If she later fully retires after reaching at least age 62 and meets the eligibility requirements, under 5 U.S.C. 8412a(f), she would receive the 1.1 percent annuity computation in the fully retired phased component of her composite annuity; the phased retirement component of her composite annuity would be based on the original 1.0 percent annuity computation, updated by cost-of-living adjustments.
Several commenters, including a few agencies, employee organizations and unions objected to the requirement in the regulations that FERS covered phased retirees would be ineligible for the FERS annuity supplement under 5 U.S.C. 8421 and asked OPM to modify the rule. Others noted that it would be a disincentive to FERS covered employees to enter phased retirement without OPM also authorizing payment of the FERS annuity supplement. One commenter suggested, therefore, that OPM should pay 50 percent of the FERS annuity supplement to remedy this issue. OPM cannot modify the rule to pay the FERS annuity supplement during phased retirement because 5 U.S.C. 8412a(j) specifically states that FERS-covered phased retirees are not eligible to receive it.
Based on the comments OPM received, we made four changes to the regulatory text. A new paragraph (e) was added to §§ 831.1713 and 848.203, respectively. Section 831.1771(b) was edited for clarity: In the first sentence, “reemployment” has been substituted for “the employment” and “upon reemployment” has been substituted for “upon employment”. Section 838.242(b) was modified to include the words “and FERS”. No other changes were made.
The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and E.O. 12866.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect Federal employees who elect phased retirement status.
Alimony, Child support, Government employees, Wages.
Claims, Government employees, Wages.
Administrative practice and procedure, Alimony, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental relations, Law enforcement officers, Pensions, Reporting and recordkeeping requirements, Retirement.
Alimony, Claims, Courts, Government employees, Pensions, Retirement.
Administrative practice and procedure, Air traffic controllers, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental relations, Law enforcement officers, Pensions, Retirement.
Air traffic controllers, Alimony, Firefighters, Government employees, Law enforcement officers, Pensions, Retirement.
Air traffic controllers, Disability benefits, Firefighters, Government employees, Law enforcement officers, Pensions, Retirement.
Air traffic controllers, Alimony, Firefighters, Government employees, Law enforcement officers, Pensions, Retirement.
Administrative practice and procedure, Government employees, Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.
Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement.
Accordingly, OPM is amending 5 CFR parts 581, 582, 831, 838, 841, 842, 843, 870, and 890 and adding a new part 848, as follows:
42 U.S.C. 659; 15 U.S.C. 1673; E.O. 12105 (43 FR 59465 and 3 CFR 262)(1979). Secs. 581.102 and 581.306 also issued under 5 U.S.C. 8336a and 8412a.
(l)
(m)
(d) In instances where an employee obligor, who is employed by a governmental entity which is honoring a continuing legal process, enters phased retirement status in accordance with part 831, subpart Q, and part 848 of this chapter, the entity must inform the party who caused the legal process to be served, or the party's representative, and the court or other authority, that remuneration for employment will continue at a reduced rate and that the employee obligor will be receiving a phased retirement annuity. The governmental entity must provide the party with the designated agent at the Office of Personnel Management who is responsible for the disbursement of retirement benefits.
5 U.S.C. 5520a; 15 U.S.C. 1673; E.O. 12897; Sec. 582.102 also issued under 5 U.S.C. 8336a and 8412a.
(2)
5 U.S.C. 8347; Sec. 831.102 also issued under 5 U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec. 831.108 also issued under 5 U.S.C. 8336(d)(2); Sec. 831.114 also issued under 5 U.S.C. 8336(d)(2), and Sec. 1313(b)(5) of Pub. L. 107-296, 116 Stat. 2135; Sec. 831.201(b)(1) also issued under 5 U.S.C. 8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); Sec. 831.201(g) also issued under Secs. 11202(f), 11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 831.201(g) also issued under Secs. 7(b) and (e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.201(i) also issued under Secs. 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.204 also issued under Sec. 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by Sec. 153 of Pub. L. 104-134, 110 Stat. 1321; Sec. 831.205 also issued under Sec. 2207 of Pub. L. 106-265, 114 Stat. 784; Sec. 831.206 also issued under Sec. 1622(b) of Pub. L. 104-106, 110 Stat. 515; Sec. 831.301 also issued under Sec. 2203 of Pub. L. 106-265, 114 Stat. 780; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2) and Sec. 2203 of Pub. L. 106-235, 114 Stat. 780; Sec. 831.502 also issued under 5 U.S.C. 8337, and under Sec. 1(3), E.O. 11228, 3 CFR 1965-1965 Comp. p. 317; Sec. 831.663 also issued under 5 U.S.C. 8339(j) and (k)(2); Secs. 831.663 and 831.664 also issued under Sec. 11004(c)(2) of Pub. L. 103-66, 107 Stat. 412; Sec. 831.682 also issued under Sec. 201(d) of Pub. L. 99-251, 100 Stat. 23; Sec. 831.912 also issued under Sec. 636 of Appendix C to Pub. L. 106-554, 114 Stat. 2763A-164; Subpart P also issued under Sec. 535(d) of Title V of Division E of Pub. L. 110-161, 121 Stat. 2042; Subpart Q also issued under 5 U.S.C. 8336a; Subpart V also issued under 5 U.S.C. 8343a and Sec. 6001 of Pub. L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also issued under Sec. 7001(a)(4) of Public Law 101-508, 104 Stat. 1388-328.
(c)(1)(i) An employee or Member whose retirement is based on a separation before October 28, 2009, and who has not completed payment of a redeposit for refunded deductions based on a period of service that ended before October 1, 1990, will receive credit for that service in computing the nondisability annuity for which the individual is eligible under subchapter III of chapter 83 of title 5, United States Code, provided the nondisability annuity commences after December 1, 1990; and
(ii) An employee or Member whose retirement is based on a separation on or after October 28, 2009, and who has not completed payment of a redeposit for refunded deductions based on a period of service that ended before March 1, 1991, will receive credit for that service in computing the nondisability annuity for which the individual is eligible under subchapter III of chapter 83 of title 5, United States Code.
In this subpart:
* * *
* * *
(1) Has entered phased retirement status under subpart Q of this part; and
(2) Has not entered full retirement status.
(a) Voluntary contributions may be made only by—
(1) Employees (including phased retirees) or Members currently subject to CSRS, and
(2) Applicants for retirement, including phased retirees who apply for full retirement status under subpart Q of this part.
An employee or Member who is eligible for retirement must file a retirement application with his or her agency. A former employee or Member who is eligible for retirement must file a retirement application with OPM. The application should not be filed more than 60 days before becoming eligible for benefits. If the application is for disability retirement, the applicant and the employing agency should refer to subpart L of this part. If the application is for phased retirement status, the employee and the employing agency should refer to subpart Q of this part.
The revision and addition read as follows:
(a) Except as provided in paragraphs (b) through (d) of this section, an annuity of an employee or Member commences on the first day of the month after—
(d) A phased retirement annuity and a composite retirement annuity granted to an employee under section 8336a of title 5, United States Code, and defined under § 831.1702, commences as provided in subpart Q of this part.
(b)
(1) An officially established recurring basic workweek consisting of 40 hours within the employee's administrative workweek (as established under § 610.111 of this chapter or similar authority);
(2) An officially established recurring basic work requirement of 80 hours per biweekly pay period (as established for employees with a flexible or compressed work schedule under 5 U.S.C. chapter 61, subchapter II, or similar authority);
(3) For a firefighter covered by 5 U.S.C. 5545b(b) who does not have a 40-hour basic workweek, a regular tour of duty averaging at least 106 hours per biweekly pay period; or
(4) A work schedule that is considered to be full-time by express provision of law, including a work schedule established for certain nurses under 38 U.S.C. 7456 or 7456A that is considered by law to be a full-time schedule for all purposes.* * *
This subpart contains the regulations implementing provisions of 5 U.S.C. 8336a authorizing phased retirement. This subpart establishes the eligibility requirements for making an election to enter phased retirement status, the procedures for making an election, the record-keeping requirements, and the methods to be used for certain computations not addressed elsewhere in part 831.
In this subpart—
(1) For the executive branch agencies, the head of an Executive agency as defined in 5 U.S.C. 105;
(2) For the legislative branch, the Secretary of the Senate, the Clerk of the House of Representatives, or the head of any other legislative branch agency;
(3) For the judicial branch, the Director of the Administrative Office of the U.S. Courts;
(4) For the Postal Service, the Postmaster General;
(5) For any other independent establishment that is an entity of the Federal Government, the head of the establishment; or
(6) An official who is authorized to act for an official named in paragraphs (1)-(5) in the matter concerned.
(1) An officially established recurring basic workweek consisting of 40 hours within the employee's administrative workweek (as established under § 610.111 of this chapter or similar authority); or
(2) An officially established recurring basic work requirement of 80 hours per biweekly pay period (as established for employees with a flexible or compressed work schedule under 5 U.S.C. chapter 61, subchapter II, or similar authority).
(1) With the concurrence of an authorized agency official, enters phased retirement status; and
(2) Has not entered full retirement status.
The Director may prescribe, in the form he or she deems appropriate, such detailed procedures as are necessary to carry out the purpose of this subpart.
(a) A retirement-eligible employee, as defined in paragraphs (b) and (c), may elect to enter phased retirement status if the employee has been employed on a full-time basis for not less than the 3-year period ending on the effective date of phased retirement status, under § 831.1714(a).
(b) Except as provided in paragraph (c) of this section, a retirement-eligible employee means an employee who, if separated from the service, would meet the requirements for retirement under subsection (a) or (b) of 5 U.S.C. 8336.
(c) A retirement-eligible employee does not include—
(1) A member of the Capitol Police or Supreme Court Police, or an employee occupying a law enforcement officer, firefighter, nuclear materials courier, air traffic controller, or customs and border protection officer position, except a customs and border protection officer who is exempt from mandatory separation and retirement under 5 U.S.C. 8335 pursuant to section 535(e)(2)(A) of Division E of the Consolidated Appropriations Act, 2008, Public Law 110-161;
(2) An individual eligible to retire under 5 U.S.C. 8336(c), (m), or (n); or
(3) An employee covered by a special work schedule authority that does not allow for a regularly recurring part-time schedule, such as a firefighter covered by 5 U.S.C. 5545b or a nurse covered by 38 U.S.C. 7456 or 7456A.
(a) For the purpose of this subpart,
(1) The number of officially established hours per pay period to be worked by a phased retiree, as described in paragraph (b) of this section; by
(2) The number of hours per pay period to be worked by an employee serving in a comparable position on a full-time basis.
(b) The number of officially established hours per pay period to be worked by an employee in phased retirement status must equal one-half the number of hours the phased retiree would have been scheduled to work had the phased retiree remained in a full-time work schedule and not elected to enter phased retirement status. These hours make up the officially established part-time work schedule of the phased retiree and exclude any additional hours worked under § 831.1715(h).
(a) To elect to enter phased retirement status, a retirement-eligible employee covered by § 831.1711 must—
(1) Submit to an authorized agency official a written and signed request to enter phased employment, on a form prescribed by OPM;
(2) Obtain the signed written approval of an authorized agency official to enter phased employment; and
(3) File an application for phased retirement, in accordance with § 831.104.
(b) Except as provided in paragraph (c) of this section, an applicant for phased retirement may withdraw his or her application any time before the election becomes effective, but not thereafter.
(c) An applicant for phased retirement may not withdraw his or her application after OPM has received a certified copy of a court order (under part 581 or part 838 of this chapter) affecting the benefits.
(d)(1) An employee and an agency approving official may agree to a time limit to the employee's period of phased employment as a condition of approval of the employee's request to enter phased employment and phased retirement, or by mutual agreement after the employee enters phased employment status.
(2) To enter into such an agreement, the employee and the approving official must complete a written and signed agreement.
(3) The written agreement must include the following:
(i) The date the employee's period of phased employment will terminate;
(ii) A statement that the employee can request the approving official's permission to return to regular employment status at any time as provided in § 831.1721; the agreement must also explain how returning to regular employment status would affect the employee, as described in §§ 831.1721-1723.
(iii) A statement that the employee has a right to elect to fully retire at any time as provided in § 831.1731;
(iv) A statement that the employee may accept a new appointment at another agency, with or without the new agency's approval of phased employment, at any time before the expiration of the agreement or within 3 days of the expiration of the agreement; the agreement must also explain how accepting an appointment at a new agency as a regular employee would affect the employee, as described in §§ 831.1721-1723;
(v) An explanation that when the agreed term of phased employment ends, the employee will be separated from employment and that such separation will be considered voluntary based on the written agreement; and
(vi) An explanation that if the employee is separated from phased employment and is not employed within 3 days (i.e., the employee has a break in service of greater than 3 days), the employee will be deemed to have elected full retirement.
(4) The agency approving official and the employee may rescind an existing agreement, or enter into a new agreement to extend or reduce the term of phased employment agreed to in an
(e) An agency must establish written criteria that will be used to approve or deny applications for phased retirement before approving or denying applications for phased retirement.
(a) Phased employment is effective the first day of the first pay period beginning after phased employment is approved by the authorized agency official under § 831.1713(a), or the first day of a later pay period specified by the employee with an authorized agency official's concurrence.
(b) The commencing date of a phased retirement annuity (i.e., the beginning date of the phased retirement period) is the first day of the first pay period beginning after phased employment is approved by an authorized agency official under § 831.1713(a), or the first day of a later pay period specified by the employee with the authorized agency official's concurrence.
(a)(1) A phased retiree is deemed to be a full-time employee for the purpose of 5 U.S.C. chapter 89 and 5 CFR part 890 (related to health benefits), as required by 5 U.S.C. 8336a(i). The normal rules governing health benefits premiums for part-time employees in 5 U.S.C. 8906(b)(3) do not apply.
(2) A phased retiree is deemed to be receiving basic pay at the rate applicable to a full-time employee holding the same position for the purpose of determining a phased retiree's annual rate of basic pay used in calculating premiums (employee withholdings and agency contributions) and benefits under 5 U.S.C. chapter 87 and 5 CFR part 870 (dealing with life insurance), as required by 5 U.S.C. 8336a(n). The deemed full-time schedule will consist of five 8-hour workdays each workweek, resulting in a 40-hour workweek. Only basic pay for hours within the deemed full-time schedule will be considered, consistent with 5 U.S.C. 8336a(n) and the definition of “full-time” in § 831.1702. Any premium pay creditable as basic pay for life insurance purposes under 5 CFR 870.204 for overtime work or hours outside the full-time schedule that an employee was receiving before phased retirement, such as standby duty pay under 5 U.S.C. 5545(c)(1) or customs officer overtime pay under 19 U.S.C. 267(a), may not be considered in determining a phased retiree's deemed annual rate of basic pay under this paragraph.
(b) A phased retiree may not be appointed to more than one position at the same time.
(c) A phased retiree may move to another position in the agency or another agency during phased retirement status only if the change would not result in a change in the working percentage. To move to another agency during phased retirement status and continue phased employment and phased retirement status, the phased retiree must submit a written and signed request and obtain the signed written approval, in accordance with § 831.1713(a)(1) and (2), of the authorized agency official of the agency to which the phased retiree is moving. Notwithstanding the provisions of § 831.1714, if the authorized agency official approves the request, the phased retiree's phased employment and phased retirement status will continue without interruption at the agency to which the phased retiree moves. If the authorized agency official at the agency to which the phased retiree moves does not approve the request, phased employment and phased retirement status terminates in accordance with § 831.1722(b).
(d) A phased retiree may be detailed to another position or agency, subject to 5 CFR part 300, subpart C, if the working percentage of the position to which detailed is the same as the working percentage of the phased retiree's position of record.
(e) A retirement-eligible employee who makes an election under this subpart may not elect an alternative annuity under 5 U.S.C. 8343a.
(f) If the employee's election of phased retirement status becomes effective, the employee is barred from electing phased retirement status again. Ending phased retirement status or entering full retirement status does not create a new opportunity for the individual to elect phased retirement status.
(g) Except as otherwise expressly provided by law or regulation, a phased retiree is treated as any other employee on a part-time tour of duty for all other purposes.
(h)(1) A phased retiree may not be assigned hours of work in excess of the officially established part-time schedule (reflecting the working percentage), except under the conditions specified in paragraph (h)(2) of this section.
(2) An authorized agency official may order or approve a phased retiree to perform hours of work in excess of the officially established part-time schedule only in rare and exceptional circumstances meeting all of the following conditions:
(i) The work is necessary to respond to an emergency posing a significant, immediate, and direct threat to life or property;
(ii) The authorized agency official determines that no other qualified employee is available to perform the required work;
(iii) The phased retiree is relieved from performing excess work as soon as reasonably possible (e.g., by management assignment of work to other employees); and
(iv) When an emergency situation can be anticipated in advance, agency management made advance plans to minimize any necessary excess work by the phased retiree.
(3) Employing agencies must inform each phased retiree and his or her supervisor of—
(i) The limitations on hours worked in excess of the officially established part-time schedule;
(ii) The requirement to maintain records documenting that exceptions met all required conditions;
(iii) The fact that, by law and regulation, any basic pay received for hours outside the employee's officially established part-time work schedule (as described in § 831.1712(a)(1) and (b)) is subject to retirement deductions and agency contributions, in accordance with 5 U.S.C. 8336a(d), but is not used in computing retirement benefits; and
(iv) The fact that, by law and regulation, any premium pay received for overtime work or hours outside the full-time schedule, that would otherwise be basic pay for retirement, such as customs officer overtime pay under 19 U.S.C. 267(a), will not be subject to retirement deductions or agency contributions, in accordance with 5 U.S.C. 8336a(d), and that any such premium pay received will not be included in computing retirement benefits.
(4) Employing agencies must maintain records documenting that exceptions granted under paragraph (h)(2) of this section meet the required conditions. These records must be retained for at least 6 years and be readily available to auditors. OPM may require periodic agency reports on the granting of exceptions and of any audit findings.
(5) If OPM finds that an agency (or subcomponent) is granting exceptions that are not in accordance with the requirements of this paragraph (h), OPM may administratively withdraw the agency's (or subcomponent's) authority to grant exceptions and require OPM approval of any exception.
(6) If OPM finds that a phased retiree has been working a significant amount of excess hours beyond the officially established part-time schedule to the degree that the intent of the phased retirement law is being undermined, OPM may require that the agency end the individual's phased retirement by unilateral action, notwithstanding the normally established methods of ending phased retirement. This finding does not need to be based on a determination that the granted exceptions failed to meet the required conditions in paragraph (h)(2) of this section. With the ending of an individual's phased retirement, that individual must be returned to regular employment status on the same basis as a person making an election under § 831.1721—unless that individual elects to fully retire as provided under § 831.1731.
(7) A phased retiree must be compensated for excess hours of work in accordance with the normally applicable pay rules.
(8) Any premium pay received for overtime work or hours outside the full-time schedule that would otherwise be basic pay for retirement, such as customs officer overtime pay under 19 U.S.C. 267(a), is not subject to retirement deductions or agency contributions, in accordance with 5 U.S.C. 8336a(d).
(i) A phased retiree is deemed to be an annuitant for the purpose of subpart S of 5 CFR part 831.
(a)
(2) To elect to end phased retirement status to return to regular employment status, a phased retiree must—
(i) Submit to the authorized agency official, on a form prescribed by OPM, a written and signed request to end phased retirement status to return to regular employment status; and
(ii) Obtain the signed written approval of the authorized agency official for the request.
(3) An employee may cancel an approved election to end phased retirement status to return to regular employment status by submitting a signed written request to the agency and obtaining the approval of an authorized agency official before the effective date of return to regular employment status.
(4) The employing agency must notify OPM that the employee's phased retirement status has ended by submitting to OPM a copy of the completed election to end phased retirement status to return to regular employment status within 15 days of its approval.
(b)
(c)
(a)(1) Except as provided in paragraph (b) of this section, if a request to end phased retirement status to return to regular employment status is approved by an authorized agency official under § 831.1721 on any date on or after the first day of a month through the fifteenth day of a month, the phased retiree's resumption of regular employment status is effective the first day of the first full pay period of the month following the month in which the election to end phased retirement status to return to regular employment status is approved.
(2) If a request to end phased retirement status to return to regular employment status is approved by an authorized agency official under § 831.1721 on any date on or after the sixteenth day of a month through the last day of a month, the phased retiree's resumption of regular employment status is effective on the first day of the first full pay period of the second month following the month in which the election to end phased retirement status to return to regular employment status is approved.
(3) The phased retirement annuity terminates on the date determined under paragraph (a)(1) or (2) of this section.
(b) When a phased retiree moves from the agency that approved his or her phased employment and phased retirement status to another agency and the authorizing official at the agency to which the phased retiree moves does not approve a continuation of phased employment and phased retirement status, phased employment and phased retirement status terminates when employment ends at the current employing agency.
(a) After phased retirement status ends under § 831.1722, the employee's rights under subchapter III of chapter 83 or chapter 84 of title 5, United States Code, are determined based on the law in effect at the time of any subsequent separation from service.
(b) After an individual ends phased retirement status to return to regular employment status, for the purposes of subchapter III of chapter 83 or chapter 84 of title 5, United States Code, at the time of the subsequent separation from service, the phased retirement period will be treated as if it had been a period of part-time employment with the work schedule described in § 831.1712(a)(1) and (b). The part-time proration adjustment for the phased retirement period will be based upon the individual's officially established part-time work schedule, with no credit for extra hours worked. In determining the individual's deemed rate of basic pay during the phased retirement period, only basic pay for hours within the individual's officially established part-time work schedule may be considered. No pay received for other hours during the phased retirement period may be included as part of basic pay for the purpose of computing retirement benefits, notwithstanding the normally applicable rules.
(c) The restrictions in §§ 831.1751 and 831.1752 regarding when an individual must complete a deposit for civilian service, a redeposit for civilian service that ended on or after March 1, 1991, or a deposit for military service do not apply when a phased retiree ends phased retirement status to return to regular employment status under this section.
(d) When a phased retiree whose phased retirement annuity was subject to an actuarial reduction for unpaid redeposit service, in accordance with § 831.303(c) and (d), ends phased retirement status to return to regular employment status, the annuity the individual becomes entitled to at retirement is subject to the actuarial reduction, increased by cost-of-living adjustments under § 831.1743(d). For
(a)
(2) A phased retiree may cancel an election of full retirement status and withdraw an application for full retirement by submitting a signed written request with the agency and obtaining the approval of an authorized agency official before the commencing date of the composite retirement annuity.
(b)
(c)
(a) The commencing date of the composite retirement annuity of a phased retiree who enters full retirement status is the day after separation.
(b) A phased retirement annuity terminates upon separation from service.
(a) Subject to adjustments described in paragraphs (b) and (c) of this section, a phased retiree's phased retirement annuity equals the product obtained by multiplying—
(1) The amount of annuity computed under 5 U.S.C. 8339, including any reduction for any unpaid deposit for non-deduction service performed before October 1, 1982, but excluding reduction for survivor annuity, that would have been payable to the phased retiree if, on the date on which the phased retiree enters phased retirement status, the phased retiree had separated from service and retired under 5 U.S.C. 8336(a) or (b); by
(2) The phased retirement percentage for the phased retiree.
(b)(1) The monthly installment of annuity derived from the computation of the annuity under paragraph (a) of this section is reduced by any actuarial reduction for unpaid redeposit service in accordance with § 831.303(c) and (d).
(2) For the purpose of applying § 831.303(c) and (d) in paragraph (b)(1) of this section, the term “time of retirement” in § 831.303(c)(2) and (d)(2)(i) means the commencing date of the phased retiree's phased retirement annuity.
(c) The monthly installment of annuity derived from the computation of the annuity under paragraph (a) of this section is also subject to any offset under § 831.1005, adjusted by multiplying the offset that would otherwise apply had the phased retiree fully retired under 5 U.S.C. 8336(a) or (b) by the phased retirement percentage.
(a) Subject to the adjustment described in paragraph (c) of this section, a phased retiree's composite retirement annuity at final retirement equals the sum obtained by adding—
(1) The amount computed under § 831.1741(a) without adjustment under § 831.1741(b) and (c), increased by cost-of-living adjustments under § 831.1743(c); and
(2) The “fully retired phased component” computed under paragraph (b) of this section.
(b)(1) Subject to the requirements described in paragraphs (b)(2) and (b)(3) of this section, a “fully retired phased component” equals the product obtained by multiplying—
(i) The working percentage; by
(ii) The amount of an annuity computed under 5 U.S.C. 8339 that would have been payable at the time of full retirement if the individual had not elected phased retirement status and as if the individual was employed on a full-time basis in the position occupied during the phased retirement period and before any reduction for survivor annuity.
(2) In applying paragraph (b)(1)(ii) of this section, the individual must be deemed to have a full-time schedule during the period of phased retirement. The deemed full-time schedule will consist of five 8-hour workdays each workweek, resulting in a 40-hour workweek. In determining the individual's deemed rate of basic pay during phased retirement, only basic pay for hours within the deemed full-time schedule will be considered, consistent with the definition of “full-time” in § 831.1702. Any premium pay creditable as basic pay for retirement purposes for overtime work or hours outside the full-time schedule that an employee was receiving before phased retirement, such as standby duty pay under 5 U.S.C. 5545(c)(1) or customs officer overtime pay under 19 U.S.C. 267(a), may not be considered in determining a phased retiree's deemed rate of basic pay during phased retirement.
(3) In computing the annuity amount under paragraph (b)(1) of this section—
(i) The amount of unused sick leave equals the result of dividing the days of unused sick leave to the individual's credit at separation for full retirement by the working percentage; and
(ii) The reduction for any unpaid deposit for non-deduction service performed before October 1, 1982, is based on the amount of unpaid deposit, with interest computed to the commencing date of the composite annuity.
(c) The composite retirement annuity computed under paragraph (a) of this section is adjusted by applying any reduction for any survivor annuity benefit.
(d) The monthly installment derived from a composite retirement annuity computed under paragraph (a) of this section and adjusted under paragraph (c) is adjusted by any—
(1) Actuarial reduction applied to the phased retirement annuity under § 831.1741(b), increased by cost-of-living adjustments under § 831.1743(d); and
(2) Offset under § 831.1005 (i.e., the offset based on all service, including service during the phased retirement period, performed by the individual that was subject to mandatory Social Security coverage).
(a) The phased retirement annuity under § 831.1741 is increased by cost-of-living adjustments in accordance with 5 U.S.C. 8340.
(b) A composite retirement annuity under § 831.1742 is increased by cost-of-living adjustments in accordance with 5
(c)(1) For the purpose of computing the amount of phased retirement annuity used in the computation under § 831.1742(a)(1), the initial cost-of-living adjustment applied is prorated in accordance with 5 U.S.C. 8340(c)(1).
(2) If the individual enters full retirement status on the same day as the effective date of a cost-of-living adjustment (usually December 1st), that cost-of-living adjustment is applied to increase the phased retirement annuity used in the computation under § 831.1742(a)(1).
(d)(1) For the purpose of computing the actuarial reduction used in the computation under § 831.1742(d)(1), the initial cost-of-living adjustment applied is prorated in accordance with 5 U.S.C. 8340(c)(1).
(2) If the individual enters full retirement status on the same day as the effective date of a cost-of-living adjustment (usually December 1st), that cost-of-living adjustment is applied to increase the actuarial reduction used in the computation under § 831.1742(d)(1).
(3) When applying each cost-of-living adjustment to the actuarial reduction used in the computation under § 831.1742(d)(1), the actuarial reduction is rounded up to the next highest dollar.
(a)(1) Any deposit an employee entering phased retirement status wishes to make for civilian service for which no retirement deductions were withheld (i.e., “non-deduction” service) must be paid within 30 days from the date OPM notifies the employee of the amount of the deposit, during the processing of the employee's application for phased retirement. The deposit amount will include interest under § 831.105, computed to the effective date of phased retirement.
(2) No deposit payment may be made by the phased retiree when entering full retirement status.
(3) As provided under § 831.1741(a)(1), for the computation of phased retirement annuity, the amount of any unpaid deposit for non-deduction service performed before October 1, 1982, including interest computed to the effective date of phased retirement annuity, will be the basis for reduction of the phased retirement annuity for such unpaid deposit.
(4) As provided under § 831.1742(b)(2), the amount of any unpaid deposit for non-deduction service performed before October 1, 1982, including interest computed to the commencing date of the composite annuity, will be the basis for reduction of the “fully retired phased component” for such unpaid deposit.
(b)(1) Any redeposit an employee entering phased retirement status wishes to make for civilian service for which retirement deductions were refunded to the employee must be paid within 30 days from the date OPM notifies the employee of the amount of the redeposit, during the processing of the employee's application for phased retirement. The redeposit amount will include interest under § 831.105 computed to the effective date of phased retirement.
(2) No redeposit payment may be made by the phased retiree when entering full retirement status.
(3) As provided under § 831.1741(b), for the computation of monthly installment of phased retirement annuity, the amount of any unpaid redeposit at phased retirement, or unpaid balance thereof, including interest computed to the effective date of phased retirement, will be the basis, along with the phased retiree's age, for any actuarial reduction of the monthly installment of phased retirement annuity for such unpaid redeposit.
(4) As provided under § 831.1742(d)(1), any actuarial reduction for unpaid redeposit service applied to the monthly installment of phased retirement annuity, as described in paragraph (b)(3) of this section and § 831.1741(b), is increased by cost-of-living adjustments and applied to the monthly installment derived from the composite retirement annuity.
(a) A phased retiree who wishes to make a military service credit deposit under § 831.2104(a) for military service performed prior to entering phased retirement status must complete such a deposit no later than the day before the effective date of his or her phased employment and the commencing date of the phased retirement annuity. A military service credit deposit for military service performed prior to an individual's entry into phased retirement status cannot be made after the effective date of phased employment and the commencing date of phased retirement annuity.
(b) A phased retiree who wishes to make a military service credit deposit under § 831.2104(a) for military service performed after the effective date of phased employment and the commencing date of the phased retirement annuity and before the effective date of the composite retirement annuity (e.g., due to the call-up of the employee for active military service) must complete such a deposit no later than the day before the effective date of his or her composite retirement annuity.
(a) For the purpose of crediting service for which actuarial reduction of annuity is permitted under § 831.303(d) for an employee who enters phased retirement, the deposit amounts under § 831.303(d) form the basis, along with the phased retiree's age, for any actuarial reduction of the phased retirement annuity for such unpaid deposits.
(b) No deposit payment for service described under § 831.303(d) may be made by the phased retiree when entering full retirement status.
(c) As provided under § 831.1741(b), the amount of any deposit under § 831.303(d) at the commencing date of the individual's phased retirement annuity, or unpaid balance thereof, including interest computed to the effective date of phased retirement annuity, will be the basis, along with the phased retiree's age, for any actuarial reduction of the phased retirement annuity for such unpaid deposit.
(d) As provided under § 831.1742(d)(1), any actuarial reduction for any unpaid deposit service under § 831.303(d) applied to the phased retirement annuity, as described in § 831.1741(b), is increased by cost-of-living adjustments and applied to the monthly installment derived from the composite retirement annuity.
(a) For the purpose of 5 U.S.C. 8341—
(1) The death of a phased retiree is deemed to be a death in service of an employee; and
(2) The phased retirement period is deemed to have been a period of part-time employment with the work schedule described in § 831.1712(a)(1) and (b) for the purpose of determining survivor benefits. The part-time proration adjustment for the phased retirement period will be based upon the employee's officially established part-time work schedule, with no credit for extra hours worked. In determining the employee's deemed rate of basic pay
(b) If a phased retiree elects not to make a deposit described in 5 U.S.C. 8334(d)(1), such that his or her annuity is actuarially reduced under 5 U.S.C. 8334(d)(2) and § 831.1741(b), and that individual dies in service as a phased retiree, the amount of any deposit upon which such actuarial reduction was to have been based will be deemed to have been fully paid.
(a) For the purpose of 5 U.S.C. 8341, an individual who dies after separating from phased employment and before submitting an application for composite retirement annuity is deemed to have filed an application for full retirement status, and composite retirement annuity, with OPM.
(b) Unless an individual described in paragraph (a) of this section was reemployed with the Federal Government after separating from phased employment, the composite retirement annuity of an individual described in paragraph (a) of this section is deemed to have accrued from the day after separation through the date of death. Any composite annuity accrued during such period of time, minus any phased annuity paid during that period, will be paid as a lump-sum payment of accrued and unpaid annuity, in accordance with 5 U.S.C. 8342(c) and (f).
If an individual performs phased employment, the lump-sum credit will be reduced by any annuity that is paid or accrued during phased employment.
(a) Unless eligibility for annuity terminates under 5 U.S.C. 8344, a phased retiree who has been separated from employment for more than 3 days and who has entered full retirement status, but who has not submitted an application for composite retirement annuity, is deemed to be an annuitant receiving annuity from the Civil Service Retirement and Disability Fund during any period of employment in an appointive or elective position in the Federal Government.
(b) A phased retiree described in paragraph (a) whose entitlement to a composite retirement annuity terminates under 5 U.S.C. 8344 due to reemployment, is an employee effective upon reemployment. The individual is not entitled to a phased retirement annuity (i.e., phased retirement annuity does not resume) during the period of employment, and the individual's entitlement to a composite retirement annuity terminates effective on the date of employment.
(a) A phased retiree, other than an employee of the United States Postal Service, must spend at least 20 percent of his or her working hours in mentoring activities as defined by an authorized agency official. For purposes of this section, mentoring need not be limited to mentoring of an employee who is expected to assume the phased retiree's duties when the phased retiree fully retires.
(b) An authorized agency official may waive the requirement under paragraph (a) of this section in the event of an emergency or other unusual circumstances (including active duty in the armed forces) that, in the authorized agency official's discretion, would make it impracticable for a phased retiree to fulfill the mentoring requirement.
5 U.S.C. 8347(a) and 8461(g). Subparts B, C, D, E, J, and K also issued under 5 U.S.C. 8345(j)(2) and 8467(b). Sections 838.221, 838.422, and 838.721 also issued under 5 U.S.C. 8347(b).
(1) Owed by the retiree to the United States;
(2) Deducted for health benefits premiums under 5 U.S.C.8906 and 5 CFR 891.401 and 891.402;
(3) Deducted for life insurance premiums under 5 U.S.C. 8714a(d);
(4) Deducted for Medicare premiums;
(5) Properly withheld for Federal income tax purposes, if the amounts withheld are not greater than they would be if the retiree claimed all dependents he or she was entitled to claim;
(6) Properly withheld for State income tax purposes, if the amounts withheld are not greater than they would be if the retiree claimed all dependents he or she was entitled to claim; or
(7) Already payable to another person based on a court order acceptable for processing or a child abuse judgment enforcement order.
Unless the court order expressly provides otherwise,
(1) With the concurrence of an authorized agency official, enters phased retirement status in accordance with 5 CFR part 831, subpart Q, or part 848; and
(2) Has not entered full retirement status;
For the purpose of this part, when the term
(a)(1) Employee annuities other than phased retirement annuities are subject to court orders acceptable for processing only if all of the conditions necessary for payment of the employee annuity to the former employee have been met, including, but not limited to—
(b)(1) Phased retirement annuities are subject to court orders acceptable for processing only if all of the conditions necessary for payment of the phased retirement annuity to the phased retiree have been met, including, but not limited to—
(i) Entry of the employee into phased retirement status under 5 CFR part 831, subpart Q, or part 848 of this chapter, respectively;
(ii) Application for payment of the phased retirement annuity by the phased retiree; and
(iii) The phased retiree's entitlement to a phased retirement annuity.
(2) Money held by an employing agency or OPM that may be payable at some future date is not available for payment under court orders directed at phased retirement annuities.
(3) OPM cannot pay a former spouse a portion of a phased retirement annuity before the employee annuity begins to accrue.
(4) Payment to a former spouse under a court order may not exceed the phased retirement annuity.
(a) * * *
(2) The retiree or phased retiree—
(b) If OPM receives a court order acceptable for processing that is directed at an employee annuity but the employee has died, or if a retiree or phased retiree dies after payments from the retiree or phased retiree to a former spouse have begun, OPM will inform the former spouse that the employee, or retiree, or phased retiree has died and that OPM can only honor court orders dividing employee annuities during the lifetime of the retiree or phased retiree.
(c) * * *
(1) * * *
(ii) That benefits cannot begin to accrue until the employee retires, or enters phased retirement status;
(2) The employee, separated employee, retiree, or phased retiree—
(d) The failure of OPM to provide, or of the employee, separated employee, retiree, phased retiree or the former spouse to receive, the information specified in this section prior to the commencing date of a reduction or accrual does not affect—
(a) Payments from employee annuities under this part will be discontinued whenever the employee annuity payments are suspended or terminated. If employee annuity payments to the retiree or phased retiree are restored, payments to the former spouse will also resume, subject to the terms of any court order acceptable for processing in effect at that time.
(b) Paragraph (a) of this section will not be applied to permit a retiree or phased retiree to deprive a former spouse of payment by causing suspension of payment of employee annuity.
(d) The last day of the month immediately preceding the month in which the retiree or phased retiree dies; or
(a) Unless the court order acceptable for processing expressly provides otherwise, the former spouse's share of an employee annuity terminates on the last day of the month immediately preceding the death of the former spouse, and the former spouse's share of employee annuity reverts to the retiree or phased retiree.
(b) * * *
(4) One or more of the retiree's or phased retiree's children as defined in 5 U.S.C. 8342(c) or 8424(d).
(b) Unused sick leave is counted as “creditable service” on the date of separation for an immediate CSRS or FERS annuity. The unused sick leave of
(e) A court order directed at employee annuity is not a court order acceptable for processing if the court order directs OPM to determine a rate of employee annuity that would require OPM to determine a salary or average salary, other than a salary or average salary actually used in computing the employee annuity, as of a date prior to the date of the employee's entry into phased retirement or separation and to adjust that salary for use in computing the former spouse share unless the adjustment is by—
(a) A court order directed at an employee annuity that states the former spouse's share of employee annuity as a formula, percentage, or fraction is not a court order acceptable for processing unless OPM can determine the type of annuity (i.e., phased retirement annuity, composite retirement annuity, net annuity, gross annuity, or self-only annuity) on which to apply the formula, percentage, or fraction.
(b) The standard types of annuity to which OPM can apply the formula, percentage, or fraction are phased retirement annuity of a phased retiree, or net annuity, gross annuity, or self-only annuity of a retiree. Unless the court order otherwise directs, OPM will apply to gross annuity the formula, percentage, or fraction directed at annuity payable to either a retiree or a phased retiree. Section 838.625 contains information on other methods of describing these types of annuity.
(c)(1) A court order may include provisions directed at:
(i) Phased retirement annuity payable to a phased retiree, to address the possibility that an employee will enter phased retirement status;
(ii) Composite retirement annuity payable to a phased retiree at entry into full retirement status, to address the possibility that an employee will enter phased retirement status and then enter full retirement status; and
(iii) Annuity payable to an employee who retires without having elected phased retirement status.
(2) To separately provide for division of phased retirement annuity or composite retirement annuity, a provision of a court order must expressly state that it is directed at “phased retirement annuity” or “composite retirement annuity,” and must meet the requirements of paragraph (a). That is, it must state the type of annuity to be divided (e.g., “net phased retirement annuity”). If such a provision is unclear as to whether it is directed at gross, net, or self-only phased retirement annuity or composite retirement annuity, the provision will be applied to gross phased retirement annuity or gross composite retirement annuity, as described in paragraph (b) of this section.
(3) Unless a court order expressly states that phased retirement annuity or composite retirement annuity is not to be divided, a court order meeting the requirements of paragraph (a) of this section and that generally provides for division of annuity, without meeting the requirements of paragraph (c)(2) of this section, regarding the specific type of annuity being divided, will be applied to divide any employee annuity, including phased retirement annuity and composite retirement annuity.
(a) A court order that uses terms such as “annuities,” “pensions,” “retirement benefits,” or similar terms, without distinguishing between phased retirement annuity payable to a phased retiree, or composite retirement annuity payable to a phased retiree upon entry into full retirement status, and employee annuity payable to a retiree, satisfies the requirements of §§ 838.303(b)(2) and 838.502(b)(2) for purposes of dividing any employee annuity or a refund of employee contributions.
(b)(1) A court order using “contributions,” “deductions,” “deposits,” “retirement accounts,” “retirement fund,” or similar terms satisfies the requirements of § 838.502(b)(2) and may be used only to divide the amount of contributions that the employee has paid into the Civil Service Retirement and Disability Fund.
(2) Unless the court order specifically states otherwise, when an employee annuity is payable, a court order using the terms specified in paragraph (b)(1) of this section satisfies the requirements of § 838.303(b)(2) and awards the former spouse a benefit to be paid in equal monthly installments at 50 percent of the gross annuity beginning on the date the employee annuity commences or the date of the court order, whichever comes later, until the specific dollar amount is reached.
(a)
(c) A court order that awards a portion of an employee annuity as of a specified date before the employee's phased retirement or retirement awards the former spouse a pro rata share as defined in paragraph (a) of this section.
(a)(1) A court order that awards adjustments to a former spouse's portion of an employee annuity stated in terms such as “cost-of-living adjustments” or “Cola's” occurring after the date of the decree but before the date of phased retirement or retirement provides increases equal to the adjustments described in or effected under 5 U.S.C. 8340 or 8462.
(2) A court order that awards adjustments to a former spouse's portion of an employee annuity stated in terms such as “salary adjustments” or “pay adjustments” occurring after the date of the decree provides increases equal to the adjustments described in or effected under 5 U.S.C. 5303, until the date the individual enters phased retirement status or retires.
(c) * * *
(2)(i) Except as provided in paragraph (b) of this section, a court order that requires OPM to compute a benefit as of a specified date before the employee's phased retirement or retirement, and specifically instructs OPM not to apply salary adjustments after the specified date in computing the former spouse's share of an employee annuity, provides that the former spouse is entitled to the application of cost-of-living adjustments after the date the individual enters phased retirement status or retires (if the employee does not enter phased retirement status first), in the manner described in § 838.241.
(ii) To award cost-of-living adjustments between a specified date and the employee's phased retirement or retirement, the court order must specifically instruct OPM to adjust the former spouse's share of the employee annuity by any cost-of-living adjustments occurring between the specified date and the date the employee enters phased retirement status or retires (if the employee does not enter phased retirement status first).
(iii) To prevent the application of cost-of-living adjustments that occur after the employee annuity begins to accrue to the former spouse's share of the employee annuity, the decree must either state the exact dollar amount of the award to the former spouse or specifically instruct OPM not to apply cost-of-living adjustments occurring after the date the employee enters phased retirement status or retires (if the employee does not enter phased retirement status first).
(c)(1) When a court order directed at employee annuity (other than a phased retirement annuity or a composite retirement annuity) contains a formula for dividing employee annuity that requires a computation of service worked as of a date prior to separation and using terms such as “years of service,” “total service,” “service performed,” or similar terms, the time attributable to unused sick leave will not be included.
(2) When a court order directed at employee annuity other than a phased retirement annuity or a composite retirement annuity contains a formula for dividing employee annuity that requires a computation of “creditable service” (or some other phrase using “credit” or its equivalent) as of a date prior to retirement, unused sick leave will be included in the computation as follows:
(d)(1) General language such as “benefits earned as an employee with the U.S. Postal Service * * *” provides only that CSRS or FERS retirement benefits are subject to division and does not limit the period of service included in the computation (i.e., service performed with other Government agencies will be included).
(2) To limit the computation of benefits other than a phased retirement annuity or a composite retirement annuity to a particular period of employment, the court order must—
(e) A court order directed at a phased retirement annuity or a composite retirement annuity cannot limit the computation and division of a phased retirement annuity or composite retirement annuity to a particular period of employment or service. A phased retirement annuity is based on an employee's service as of phased retirement and a “fully retired phased component,” described in §§ 831.1742 and 848.502, of a composite retirement annuity is based on a phased retiree's service as of his or her full retirement. A court order that attempts to limit the computation of a phased retirement annuity or a composite retirement annuity to a particular period of employment or service is not a court order acceptable for processing. If the former spouse's award of a portion of phased retirement annuity or a composite retirement annuity is to be limited, the limitation of the division must be accomplished in a manner other than by limiting the service to be used in the computation.
¶ 201 * * *
A court order may include an award directed at (1) phased retirement annuity payable to a phased retiree, to address the possibility that an employee will enter phased retirement status; (2) composite retirement annuity payable to a phased retiree at entry into full retirement status, to address the possibility that an employee will enter phased retirement status and then enter full retirement status; or (3) annuity payable to an employee who retires without having elected phased retirement status.
A general non-specific award will apply to any employee annuity payable, including phased retirement annuity and composite retirement annuity (
To separately provide for division of phased retirement annuity or composite retirement annuity, a provision of a court order must expressly state that it is directed at “phased retirement annuity” or “composite retirement annuity,” and must indicate the share of employee annuity as a formula, percentage, or fraction. That is, it must state the type of annuity to be divided (e.g., “net phased retirement annuity”). If such a provision is unclear as to whether it is directed at gross, net, or self-only phased retirement annuity or composite retirement annuity, the provision will be applied to gross phased retirement annuity or gross composite retirement annuity.
It should be noted that a former spouse survivor annuity cannot be awarded from a phased retirement annuity; therefore, a phased retirement annuity is not subject to reduction to provide a former spouse survivor annuity. As a consequence, an award dividing either “self-only phased retirement annuity” or a “gross phased retirement annuity” would be directed at identical annuities. However, a former spouse survivor annuity can be awarded from a composite retirement annuity payable to a phased retiree at entry into full retirement status (i.e., when the “phased retiree” enters full retirement status and becomes a “retiree”); therefore, there would be a difference between an award of a share of “self-only composite retirement annuity” and an award of a share of “gross composite retirement annuity.”
Due to the complexity of the benefits, care should be taken in drafting separate awards of phased retirement annuity or composite retirement annuity. It should also be noted, for example, that an award directed only at the division of phased retirement annuity or composite retirement annuity payable to a phased retiree will not be effective to divide annuity payable to an employee who retires in the usual manner, without having entered phased retirement status first. If separate awards of phased retirement annuity or composite retirement annuity are to be provided, consideration should be given to including provisions in the paragraph addressing the possibility that the employee may retire in the usual manner without entering phased retirement status before fully retiring. Similarly, if employee annuity is only to be awarded in the event the employee retires in the usual manner, without entering phased retirement status before fully retiring, consideration should be given to including specific language to that effect.
Using the following paragraph will award phased retirement annuity and composite retirement annuity and provides for the possibility that the employee retires in the usual manner without entering phased retirement status:
“[Employee] is (or will be) eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. If [employee] enters phased retirement status, the [former spouse] is entitled to a [insert description of percentage, fraction, formula, or insert term `pro rata share'] of [employee]'s [insert `gross,' `net,' or `self-only'] monthly phased retirement annuity under the Civil Service Retirement System. When [employee] enters full retirement status and receives a composite retirement annuity, [former spouse] is awarded [insert language awarding fraction, formula, or `pro rata share'] of [employee]'s monthly [insert “gross,” “net” or “self-only”] composite retirement annuity under the Civil Service Retirement System. If [employee] retires from employment with the United States Government without entering phased retirement status before fully retiring, [former spouse] is entitled to [insert appropriate language from 200 series or 300 series paragraphs] under the Civil Service Retirement System. The marriage began on [insert date]. The United States Office of Personnel Management is directed to pay [former spouse]'s share directly to [former spouse].”
Using the following will award composite retirement annuity when an employee enters phased retirement status and subsequently enters full retirement status, and provides for the possibility that the employee retires in the usual manner without having entered phased retirement status; however, the paragraph will not award a phased retirement annuity when the employee enters phased retirement status:
“[Employee] is (or will be) eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. If [employee] enters phased retirement status and subsequently enters full retirement status, the [former spouse] is entitled to a [insert description of percentage, fraction, formula, or insert term `pro rata share'] of [employee]'s [insert `gross,' `net,' or `self-only'] monthly composite retirement annuity under the Civil Service Retirement System. If [employee] retires from employment with the United States Government without entering phased retirement status before fully retiring, [former spouse] is entitled to [insert appropriate language from 200 series or 300 series paragraphs] under the Civil Service Retirement System. The marriage began on [insert date]. The United States Office of Personnel Management is
Use the following paragraph if the former spouse is only to be awarded a portion of the employee's annuity when the employee retires in the usual manner, without an award of a portion of the employee's phased retirement annuity or composite retirement annuity in the event that the employee enters phased retirement status. It should be noted, however, that if this conditional clause provided below is used in an appropriate 200 or 300 series paragraph without a conditional award of a portion of phased retirement annuity and composite retirement annuity, the former spouse will not receive a portion of the employee's annuity if the employee enters phased retirement status and then enters full retirement status:
“If [employee] retires from employment with the United States Government without entering phased retirement status before fully retiring, [former spouse] is awarded [insert remaining language for the paragraph from the appropriate 200 series or 300 series]. . . The marriage began on [insert date]. The United States Office of Personnel Management is directed to pay [former spouse]'s share directly to [former spouse].”
Use the following paragraph to award only phased retirement annuity and composite retirement annuity. This paragraph will not award benefits if the employee retires in the usual manner without entering phased retirement status:
“[Employee] is (or will be) eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. If [employee] enters phased retirement status, the [former spouse] is entitled to a [insert description of percentage, fraction, formula, or insert term `pro rata share'] of [employee]'s monthly [insert `gross,' `net,' or `self-only'] phased retirement annuity under the Civil Service Retirement System. When [employee] enters full retirement status and receives a composite retirement annuity, [former spouse] is awarded [insert language awarding percentage, fraction, formula, or pro rata share] of [employee]'s monthly [insert “gross,” “net” or “self-only”] composite retirement annuity under the Civil Service Retirement System. The marriage began on [insert date]. The United States Office of Personnel Management is directed to pay [former spouse]'s share directly to [former spouse].”
Using the following will award only phased retirement annuity. This paragraph will not award composite retirement annuity when the employee enters full retirement status nor will it provide for the possibility that the employee retires in the usual manner without entering phased retirement status. It should be noted that if this paragraph is used, the former spouse will not receive a portion of the employee's annuity benefits if the employee retires in the usual manner without entering phased retirement status first:
“[Employee] is (or will be) eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. If [employee] enters phased retirement status, the [former spouse] is entitled to a [insert description of percentage, fraction, formula, or insert term `pro rata share'] of [employee]'s [insert `gross,' `net,' or `self-only'] monthly phased retirement annuity under the Civil Service Retirement System. The marriage began on [insert date]. The United States Office of Personnel Management is directed to pay [former spouse]'s share directly to [former spouse].”
Using the following will award only composite retirement annuity when the employee enters full retirement status following phased retirement. This paragraph will not award phased retirement annuity when the employee enters phased retirement status nor will it provide for the possibility that the employee retires in the usual manner without entering phased retirement status. It should be noted that if this paragraph is used, the former spouse will not receive a portion of the employee's annuity benefits if the employee retires without entering full retirement status from phased retirement status:
“[Employee] is (or will be) eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. If [employee] enters phased retirement status and enters full retirement status, the [former spouse] is entitled to a [insert description of percentage, fraction, formula, or insert term `pro rata share'] of [employee]'s [insert `gross,' `net,' or `self-only'] monthly composite retirement annuity under the Civil Service Retirement System. The marriage began on [insert date]. The United States Office of Personnel Management is directed to pay [former spouse]'s share directly to [former spouse].”
Using the following paragraph will prevent application of COLA's to a former spouse's share of an employee annuity in cases where the former spouse has been awarded a percentage, fraction or pro rata share of the employee annuity, rather than a fixed dollar amount.
“[Employee] is (or will be) eligible for retirement benefits under the Civil Service Retirement System based on employment with the United States Government. [Insert language for computing the former spouse's share from ¶ 202, ¶ 203, ¶ 204, ¶ 211, or ¶¶ 212-217 of this appendix.] The United States Office of Personnel Management is directed to determine the amount of [former spouse]'s share on the date [insert `when [employee] retires or enters phased retirement status' or if the employee has not retired or entered phased retirement status, or `of this order' if the employee is already retired or entered phased retirement status] and not to apply COLA's to that amount. The United States Office of Personnel Management is directed to
Awards of employee annuity to a former spouse (other than awards of fixed dollar amounts) must specify whether OPM will use the “phased retirement annuity,” “composite retirement annuity,” “gross annuity,” “net annuity,” or “self-only annuity” as defined in § 838.103 (see also § 838.306) in determining the amount of the former spouse's entitlement. The court order may contain a formula that has the effect of creating other types of annuity, but the court order may only do this by providing a formula that starts from “phased retirement annuity,” “composite retirement annuity,” “gross annuity,” “net annuity,” or “self-only annuity” as defined in § 838.103.
(c) A court order that attempts to award a former spouse survivor annuity based on a phased retirement annuity or to reduce a phased retirement annuity to provide survivor benefits is not a court order acceptable for processing.
(d) * * *
(2) The effective commencing date for the employee's annuity other than the commencing date of a phased retirement annuity.
(a) A court order awarding a former spouse survivor annuity is not a court order acceptable for processing unless it permits OPM to collect the annuity reduction required by 5 U.S.C. 8339(j)(4) or 8419 from annuity paid by OPM to a retiree. OPM will not honor a court order that provides for the retiree or former spouse to pay OPM the amount of the annuity reduction by any other means.
(b) * * *
(1) By reduction of the former spouse's entitlement under a court order acceptable for processing that is directed at employee annuity payable to a retiree;
(2) By reduction of the employee annuity payable to a retiree; or
(3) By actuarial reduction of the former spouse survivor annuity in the event the reduction of the employee annuity is not made for any reason prior to the death of the annuitant.
(c) Unless the court order otherwise directs, OPM will collect the annuity reduction required by 5 U.S.C. 8339(j)(4) or 8419 from the employee annuity payable to a retiree.
(a)(1) Employee annuities, other than phased retirement annuities, and refunds of employee contributions are subject to child abuse enforcement orders only if all of the conditions necessary for payment of the employee annuity or refund of employee contributions to the former employee have been met, including, but not limited to—
(b)(1) Phased retirement annuities are subject to child abuse enforcement orders only if all of the conditions necessary for payment of the phased retirement annuity to the phased retiree have been met, including, but not limited to—
(i) Entry of the employee into phased retirement status under subpart Q of part 831 of this chapter or part 848 of this chapter, respectively;
(ii) Application for payment of the phased retirement annuity by the phased retiree; and
(iii) The phased retiree's immediate entitlement to a phased retirement annuity.
(2) Money held by an employing agency or OPM that may be payable at some future date is not available for payment under child abuse judgment enforcement orders.
(3) OPM cannot pay a child abuse creditor a portion of a phased retirement annuity before the employee annuity begins to accrue.
5 U.S.C. 8461; Sec. 841.108 also issued under 5 U.S.C. 552a; Secs. 841.110 and 841.111 also issued under 5 U.S.C. 8470(a); subpart D also issued under 5 U.S.C. 8423; Sec. 841.504 also issued under 5 U.S.C. 8422; Sec. 841.507 also issued under section 505 of Pub. L. 99-335; subpart J also issued under 5 U.S.C. 8469; Sec. 841.506 also issued under 5 U.S.C. 7701(b)(2); Sec. 841.508 also issued under section 505 of Pub. L. 99-335; Sec. 841.604 also issued under Title II, Pub. L. 106-265, 114 Stat. 780.
The additions read as follows:
(b) * * *
(6) Part 848 of this chapter contains information about phased retirement under FERS.
(c) * * *
(6) Part 850 of this chapter contains information about CSRS and FERS electronic retirement processing.
(a) Unless otherwise defined for use in any subpart, as used in connection with FERS (parts 841 through 850 of this chapter), terms defined in 5 U.S.C. 8401 have the same meanings assigned to them by that section.
(b) Unless otherwise defined for use in any subpart, as used in connection with FERS (parts 841 through 850 of this chapter)—
5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also issued under 5 U.S.C. 8461(n); Sec. 842.104 also issued under Secs. 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.105 also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 also issued under Sec. 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by Sec. 153 of Pub. L. 104-134, 110 Stat. 1321-102; Sec. 842.107 also issued under Secs. 11202(f), 11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251, and Sec. 7(b) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.108 also issued under Sec. 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.109 also issued under Sec. 1622(b) of Public Law 104-106, 110 Stat. 515; Sec. 842.208 also issued under Sec. 535(d) of Title V of Division E of Pub. L. 110-161, 121 Stat.
In this subpart—
(1) An officially established recurring basic workweek consisting of 40 hours within the employee's administrative workweek (as established under § 610.111 of this chapter or similar authority);
(2) An officially established recurring basic work requirement of 80 hours per biweekly pay period (as established for employees with a flexible or compressed work schedule under 5 U.S.C. chapter 61, subchapter II, or similar authority);
(3) For a firefighter covered by 5 U.S.C. 5545b(b) who does not have a 40-hour basic workweek, a regular tour of duty averaging at least 106 hours per biweekly pay period; or
(4) A work schedule that is considered to be full-time by express provision of law, including a work schedule established for certain nurses under 38 U.S.C. 7456 or 7456A that is considered by law to be a full-time schedule for all purposes.
5 U.S.C. 8461; §§ 843.205, 843.208, and 843.209 also issued under 5 U.S.C. 8424; § 843.309 also issued under 5 U.S.C. 8442; § 843.406 also issued under 5 U.S.C. 8441.
(b)(1) For a retirement based on a separation before October 28, 2009, periods of service for which employee contributions have been refunded are not creditable service in determining whether the employee has sufficient service to have title to an annuity or for any other purpose.
(2) For a retirement based on a separation on or after October 28, 2009, periods of service for which employee contributions have been refunded are—
(i) Creditable service in determining whether the employee has sufficient service to have title to an annuity; and
(ii) Not creditable without deposit for any other purpose, except for average pay computation purposes.
5 U.S.C. 8461; 5 U.S.C. 8412a.
This subpart contains the regulations implementing provisions of 5 U.S.C. 8412a authorizing phased retirement. This subpart establishes the eligibility requirements for making an election to enter phased retirement status, the procedures for making an election, the record-keeping requirements, and the methods to be used for certain computations not addressed elsewhere in parts 841-843 and 845.
In this subpart—
(1) For the executive branch agencies, the head of an Executive agency as defined in 5 U.S.C. 105;
(2) For the legislative branch, the Secretary of the Senate, the Clerk of the House of Representatives, or the head of any other legislative branch agency;
(3) For the judicial branch, the Director of the Administrative Office of the U.S. Courts;
(4) For the Postal Service, the Postmaster General;
(5) For any other independent establishment that is an entity of the Federal Government, the head of the establishment; or
(6) An official who is authorized to act for an official named in paragraphs (1)-(5) in the matter concerned.
(1) An officially established recurring basic workweek consisting of 40 hours within the employee's administrative workweek (as established under § 610.111 of this chapter or similar authority); or
(2) An officially established recurring basic work requirement of 80 hours per biweekly pay period (as established for employees with a flexible or compressed work schedule under 5 U.S.C. chapter 61, subchapter II, or similar authority).
(1) With the concurrence of an authorized agency official, enters phased retirement status; and
(2) Has not entered full retirement status;
The Director may prescribe, in the form he or she deems appropriate, such detailed procedures as are necessary to carry out the purpose of this subpart.
(a) A retirement-eligible employee, as defined in paragraphs (b) and (c), may elect to enter phased retirement status if the employee has been employed on a full-time basis for not less than the 3-year period ending on the effective date of phased retirement status under § 848.203.
(b) Except as provided in paragraph (c) of this section, a retirement-eligible employee means an employee who, if separated from the service, would meet the requirements for retirement under subsection (a) or (b) of 5 U.S.C. 8412.
(c) A retirement-eligible employee does not include—
(1) A member of the Capitol Police or Supreme Court Police, or an employee occupying a law enforcement officer, firefighter, nuclear materials courier, air traffic controller, or customs and border protection officer position, except a customs and border protection officer who is exempt from mandatory separation and retirement under 5 U.S.C. 8325 pursuant to section 535(e)(2)(A) of Division E of the Consolidated Appropriations Act, 2008, Public Law 110-161;
(2) An individual eligible to retire under 5 U.S.C. 8412(d) or (e): or
(3) An employee covered by a special work schedule authority that does not allow for a regularly recurring part-time schedule, such as a firefighter covered by 5 U.S.C. 5545b or a nurse covered by 38 U.S.C. 7456 or 7456A.
(a) For the purpose of this subpart,
(1) The number of officially established hours per pay period to be worked by a phased retiree, as described in paragraph (b) of this section; by
(2) The number of hours per pay period to be worked by an employee serving in a comparable position on a full-time basis.
(b) The number of officially established hours per pay period to be worked by an employee in phased retirement status must equal one-half the number of hours the phased retiree would have been scheduled to work had the phased retiree remained in a full-time work schedule and not elected to enter phased retirement status. These hours make up the officially established part-time work schedule of the phased retiree and exclude any additional hours worked under § 848.205(j).
(a) To elect to enter phased retirement status, a retirement-eligible employee covered by § 848.201 must—
(1) Submit to an authorized agency official a written and signed request to enter phased employment, on a form prescribed by OPM;
(2) Obtain the signed written approval of an authorized agency official to enter phased employment; and
(3) File an application for phased retirement, in accordance with § 841.202.
(b) Except as provided in paragraph (c) of this section, an applicant for phased retirement may withdraw his or her application any time before the election becomes effective, but not thereafter.
(c) An applicant for phased retirement may not withdraw his or her application after OPM has received a certified copy of a court order (under part 581 or part 838 of this chapter) affecting the benefits.
(d)(1) An employee and an agency approving official may agree to a time limit to the employee's period of phased employment as a condition of approval of the employee's request to enter phased employment and phased retirement, or by mutual agreement after the employee enters phased employment status.
(2) To enter into such an agreement, the employee and the approving official must complete a written and signed agreement.
(3) The written agreement must include the following:
(i) The date the employee's period of phased employment will terminate;
(ii) A statement that the employee can request the approving official's permission to return to regular employment status at any time or within three days after the expiration of the agreement as provided in § 848.301. The agreement must also explain how returning to regular employment status would affect the employee, as described in §§ 848.301-302.
(iii) A statement that the employee has a right to elect to fully retire at any time as provided in § 848.401;
(iv) A statement that the employee may accept a new appointment at another agency, with or without the new agency's approval of phased employment, at any time before the expiration of the agreement or within 3 days of the expiration of the agreement; the agreement must also explain how accepting an appointment at a new agency as a regular employee would affect the employee, as described in §§ 848.301-302;
(v) An explanation that when the agreed term of phased employment ends, the employee will be separated from employment and that such separation will be considered voluntary, based on the written agreement; and
(vi) An explanation that if the employee is separated from phased employment and is not employed
(4) The agency approving official and the employee may rescind an existing agreement, or enter into a new agreement to extend or reduce the term of phased employment agreed to in an existing agreement, by entering into a new written agreement meeting the requirements of this paragraph, before the expiration of the agreement currently in effect.
(e) An agency must establish written criteria that will be used to approve or deny applications for phased retirement before approving or denying applications for phased retirement.
(a) Phased employment is effective the first day of the first pay period beginning after phased employment is approved by an authorized agency official under § 848.203(a), or the first day of a later pay period specified by the employee with the authorized agency official's concurrence.
(b) The commencing date of a phased retirement annuity (i.e., the beginning date of the phased retirement period) is the first day of the first pay period beginning after phased employment is approved by an authorized agency official under § 848.203(a), or the first day of a later pay period specified by the employee with the authorized agency official's concurrence.
(a)(1) A phased retiree is deemed to be a full-time employee for the purpose of 5 U.S.C. chapter 89 and 5 CFR part 890 (related to health benefits), as required by 5 U.S.C. 8412a(i). The normal rules governing health benefits premiums for part-time employees in 5 U.S.C. 8906(b)(3) do not apply.
(2) A phased retiree is deemed to be receiving basic pay at the rate applicable to a full-time employee holding the same position for the purpose of determining a phased retiree's annual rate of basic pay used in calculating premiums (employee withholdings and agency contributions) and benefits under 5 U.S.C. chapter 87 and 5 CFR part 870 (dealing with life insurance), as required by 5 U.S.C. 8412a(o). The deemed full-time schedule will consist of five 8-hour workdays each workweek, resulting in a 40-hour workweek. Only basic pay for hours within the deemed full-time schedule will be considered, consistent with 5 U.S.C. 8412a(o) and the definition of “full-time” in § 848.102. Any premium pay creditable as basic pay for life insurance purposes under 5 CFR 870.204 for overtime work or hours outside the full-time schedule that an employee was receiving before phased retirement, such as standby duty pay under 5 U.S.C. 5545(c)(1) or customs officer overtime pay under 19 U.S.C. 267(a), may not be considered in determining a phased retiree's deemed annual rate of basic pay under this paragraph.
(b) A phased retiree may not be appointed to more than one position at the same time.
(c) A phased retiree may move to another position in the agency or another agency during phased retirement status only if the change would not result in a change in the working percentage. To move to another agency during phased retirement status and continue phased employment and phased retirement status, the phased retiree must submit a written and signed request and obtain the signed written approval, in accordance with § 848.203(a)(1) and (2), of the authorized agency official to which the phased retiree is moving. Notwithstanding the provisions of § 848.204, if the authorized agency official approves the request, the phased retiree's phased employment and phased retirement status will continue without interruption at the agency to which the phased retiree moves. If the authorized agency official at the agency to which the phased retiree moves does not approve the request, phased employment and phased retirement status terminates in accordance with § 848.302(b).
(d) A phased retiree may be detailed to another position or agency if the working percentage of the position to which detailed is the same as the working percentage of the phased retiree's position of record.
(e) A retirement-eligible employee who makes an election under this subpart may not elect an alternative annuity under 5 U.S.C. 8420a.
(f) If the employee's election of phased retirement status becomes effective, the employee is barred from electing phased retirement status again. Ending phased retirement status or entering full retirement status does not create a new opportunity for the individual to elect phased retirement status.
(g) With the exception of § 841.803(f), a phased retiree is deemed to be an annuitant for the purpose of subpart H of 5 CFR part 841.
(h) A phased retiree is deemed to be an annuitant for the purpose of subpart J of 5 CFR part 841.
(i) Except as otherwise expressly provided by law or regulation, a phased retiree is treated as any other employee on a part-time tour of duty for all other purposes.
(j)(1) A phased retiree may not be assigned hours of work in excess of the officially established part-time schedule (reflecting the working percentage), except under the conditions specified in paragraph (j)(2) of this section.
(2) An authorized agency official may order or approve a phased retiree to perform hours of work in excess of the officially established part-time schedule only in rare and exceptional circumstances meeting all of the following conditions:
(i) The work is necessary to respond to an emergency posing a significant, immediate, and direct threat to life or property;
(ii) The authorized agency official determines that no other qualified employee is available to perform the required work;
(iii) The phased retiree is relieved from performing excess work as soon as reasonably possible (e.g., by management assignment of work to other employees); and
(iv) When an emergency situation can be anticipated in advance, agency management made advance plans to minimize any necessary excess work by the phased retiree.
(3) Employing agencies must inform each phased retiree and his or her supervisor of—
(i) The limitations on hours worked in excess of the officially established part-time schedule;
(ii) The requirement to maintain records documenting that the exceptions met all required conditions;
(iii) The fact that, by law and regulation, any basic pay received for hours outside the employee's officially established part-time work schedule (as described in § 848.202(a)(1) and (b)) is subject to retirement deductions and agency contributions, in accordance with 5 U.S.C. 8412a(d), but is not used in computing retirement benefits; and
(iv) The fact that, by law and regulation, any premium pay received for overtime work or hours outside the full-time schedule that would otherwise be basic pay for retirement, such as customs officer overtime pay under 19 U.S.C. 267(a), will not be subject to retirement deductions or agency contributions, in accordance with 5 U.S.C. 8412a(d), and that any such premium pay received will not be included in computing retirement benefits.
(4) Employing agencies must maintain records documenting that exceptions
(5) If OPM finds that an agency (or subcomponent) is granting exceptions that are not in accordance with the requirements of this paragraph (j), OPM may administratively withdraw the agency's (or subcomponent's) authority to grant exceptions and require OPM approval of any exception.
(6) If OPM finds that a phased retiree has been working a significant amount of excess hours beyond the officially established part-time schedule to the degree that the intent of the phased retirement law is being undermined, OPM may require that the agency end the individual's phased retirement by unilateral action, notwithstanding the normally established methods of ending phased retirement. This finding does not need to be based on a determination that the granted exceptions failed to meet the required conditions in paragraph (j)(2) of this section. With the ending of an individual's phased retirement, that individual must be returned to regular employment status on the same basis as a person making an election under § 848.301—unless that individual elects to fully retire as provided under § 848.401.
(7) A phased retiree must be compensated for excess hours of work in accordance with the normally applicable pay rules.
(8) Any premium pay received for overtime work or hours outside the full-time schedule that would otherwise be basic pay for retirement, such as customs officer overtime pay under 19 U.S.C. 267(a), is not subject to retirement deductions or agency contributions, in accordance with 5 U.S.C. 8412a(d).
(a)
(2) To elect to end phased retirement status to return to regular employment status, a phased retiree must—
(i) Submit to an authorized agency official, on a form prescribed by OPM, a written and signed request to end phased retirement status to return to regular employment status; and
(ii) Obtain the signed written approval of an authorized agency official for the request.
(3) An employee may cancel an approved election to end phased retirement status to return to regular employment status by submitting a signed written request to the agency and obtaining the approval of an authorized agency official before the effective date of return to regular employment status.
(4) The employing agency must notify OPM that the employee's phased retirement status has ended by submitting to OPM a copy of the completed election to end phased retirement status to return to regular employment status within 15 days of its approval.
(b)
(c)
(a)(1) Except as provided in paragraph (b) of this section, if a request to end phased retirement status to return to regular employment status is approved by an authorized agency official under § 848.301 on any date on or after the first day of a month through the fifteenth day of a month, the phased retiree's resumption of regular employment status is effective the first day of the first full pay period of the month following the month in which the election to end phased retirement status to return to regular employment status is approved.
(2) If a request to end phased retirement status to return to regular employment status is approved by an authorized agency official under § 848.301 on any date on or after the sixteenth day of a month through the last day of a month, the phased retiree's resumption of regular employment status is effective on the first day of the first full pay period of the second month following the month in which the election to end phased retirement status to return to regular employment status is approved.
(3) The phased retirement annuity terminates on the date determined under paragraph (a)(1) or (2) of this section.
(b) When a phased retiree moves from the agency that approved his or her phased employment and phased retirement status to another agency and the authorizing official at the agency to which the phased retiree moves does not approve a continuation of phased employment and phased retirement status, phased employment and phased retirement status terminates when employment ends at the current employing agency.
(a) After phased retirement status ends under § 848.302, the employee's rights under subchapter III of chapter 83 or chapter 84 of title 5, United States Code, are determined based on the law in effect at the time of any subsequent separation from service.
(b) After an individual ends phased retirement status to return to regular employment status, for the purposes of subchapter III of chapter 83 or chapter 84 of title 5, United States Code, at the time of the subsequent separation from service, the phased retirement period will be treated as if it had been a period of part-time employment with the work schedule described in § 848.202(a)(1) and (b). The part-time proration adjustment for the phased retirement period will be based upon the individual's officially established part-time work schedule, with no credit for extra hours worked. In determining the individual's deemed rate of basic pay during the phased retirement period, only basic pay for hours within the individual's officially established part-time work schedule may be considered. No pay received for other hours during the phased retirement period may be included as part of basic pay for the purpose of computing retirement benefits, notwithstanding the normally applicable rules.
(c) The restrictions in §§ 848.601 and 848.602 regarding when an individual must complete a deposit for civilian service, a redeposit for civilian service, or a deposit for military service do not apply when a phased retiree ends phased retirement status to return to regular employment status under this section.
(a)
(2) A phased retiree may cancel an election of full retirement status and withdraw an application for full retirement by submitting a signed written request with the agency and obtaining the approval of an authorized agency official before the commencing date of the composite retirement annuity.
(b)
(c)
(a) The commencing date of the composite retirement annuity of a phased retiree who enters full retirement status is the day after separation.
(b) A phased retirement annuity terminates upon separation from service.
A phased retiree's phased retirement annuity equals the product obtained by multiplying (1) the amount of annuity computed under 5 U.S.C. 8415, excluding reduction for survivor annuity, that would have been payable to the phased retiree if, on the date on which the phased retiree enters phased retirement, the phased retiree had separated from service and retired under 5 U.S.C. 8412(a) or (b), by (2) the phased retirement percentage for the phased retiree.
(a) Subject to the adjustment described in paragraph (c) of this section, a phased retiree's composite retirement annuity at final retirement equals the sum obtained by adding—
(1) The amount computed under § 848.501(a), increased by cost-of-living adjustments under § 848.503(c); and
(2) The “fully retired phased component” computed under paragraph (b) of this section.
(b)(1) Subject to the requirements described in paragraphs (b)(2) and (b)(3) of this section, a “fully retired phased component” equals the product obtained by multiplying—
(i) The working percentage; by
(ii) The amount of an annuity computed under 5 U.S.C. 8415 that would have been payable at the time of full retirement if the individual had not elected phased retirement status and as if the individual was employed on a full-time basis in the position occupied during the phased retirement period and before any reduction for survivor annuity.
(2) In applying paragraph (b)(1)(ii) of this section, the individual must be deemed to have a full-time schedule during the period of phased retirement. The deemed full-time schedule will consist of five 8-hour workdays each workweek, resulting in a 40-hour workweek. In determining the individual's deemed rate of basic pay during phased retirement, only basic pay for hours within the deemed full-time schedule will be considered, consistent with the definition of “full-time” in § 848.102. Any premium pay creditable as basic pay for retirement purposes for overtime work or hours outside the full-time schedule that an employee was receiving before phased retirement, such as standby duty pay under 5 U.S.C. 5545(c)(1) or customs officer overtime pay under 19 U.S.C. 267(a), may not be considered in determining a phased retiree's deemed rate of basic pay during phased retirement.
(3) In computing the annuity amount under paragraph (b)(1) of this section, the amount of unused sick leave credit equals the result of dividing the applicable percentage under 5 U.S.C. 8415(l) of the days of unused sick leave to the employee's credit at separation for full retirement, by the working percentage.
(c) The composite retirement annuity computed under paragraph (a) of this section is adjusted by applying any reduction for any survivor annuity benefit.
(a) The phased retirement annuity under § 848.501 is increased by cost-of-living adjustments in accordance with 5 U.S.C. 8462.
(b) A composite retirement annuity under § 848.502 is increased by cost-of-living adjustments in accordance with 5 U.S.C. 8462, except that 5 U.S.C. 8462(c)(1) does not apply.
(c)(1) For the purpose of computing the amount of phased retirement annuity used in the computation under § 848.502(a)(1), the initial cost-of-living adjustment applied is prorated in accordance with 5 U.S.C. 8462(c)(1).
(2) If the individual enters full retirement status on the same day as the effective date of a cost-of-living adjustment (usually December 1st), that cost-of-living adjustment, if applicable under 5 U.S.C. 8462, is applied to increase the phased retirement annuity used in the computation under § 848.502(a)(1).
A phased retiree is not eligible to receive an annuity supplement under 5 U.S.C. 8421.
Any deposit under § 842.304 and § 842.305, or redeposit under 5 U.S.C. 8422(i), that an employee entering phased retirement wishes to make for civilian service must be paid within 30 days from the date OPM notifies the employee of the amount of the deposit or redeposit, during the processing of the employee's application for phased retirement. The deposit or redeposit amount will include interest, computed to the effective date of phased retirement. No deposit or redeposit payment may be made by the phased retiree when entering full retirement status.
(a) A phased retiree who wishes to make a military service credit deposit under § 842.307 for military service performed prior to entering phased retirement status must complete such a
(b) A phased retiree who wishes to make a military service credit deposit under § 842.307 for military service performed after the effective date of phased employment and the commencing date of phased retirement annuity and before the effective date of the composite retirement annuity (e.g., due to the call-up of the employee for active military service) must complete such a deposit no later than the day before the effective date of his or her composite retirement annuity.
(a) For the purpose of 5 U.S.C. chapter 84, subchapter IV—
(1) The death of a phased retiree is deemed to be a death in service of an employee; and
(2) The phased retirement period is deemed to have been a period of part-time employment with the work schedule described in § 848.202(a)(1) and (b) for the purpose of determining survivor benefits. The part-time proration adjustment for the phased retirement period will be based upon the employee's officially established part-time work schedule, with no credit for extra hours worked. In determining the employee's deemed rate of basic pay during the phased retirement period, only basic pay for hours within the employee's officially established part-time work schedule may be considered. No pay received for other hours during the phased retirement period may be included as part of basic pay for the purpose of computing retirement benefits, notwithstanding the normally applicable rules.
(a) For the purpose of 5 U.S.C. chapter 84, subchapter IV, an individual who dies after separating from phased employment and before submitting an application for composite retirement annuity is deemed to have filed an application for composite retirement annuity with OPM.
(b) The composite retirement annuity of a phased retiree described in paragraph (a) of this section is deemed to have accrued from the day after separation through the date of death. Any unpaid composite annuity accrued during such period, minus any phased retirement annuity paid during that period, will be paid as a lump-sum payment of accrued and unpaid annuity, in accordance with 5 U.S.C. 8424(d) and (g).
If an individual performs phased employment, the lump-sum credit as defined in 5 U.S.C. 8401(19) will be reduced by any annuity that is paid or accrued during phased employment.
A phased retiree who has been separated from employment for more than 3 days and who has entered full retirement status, but who has not submitted an application for composite retirement annuity, is deemed to be an annuitant receiving annuity from the Civil Service Retirement and Disability Fund during any period of employment in an appointive or elective position in the Federal Government.
(a) A phased retiree, other than an employee of the United States Postal Service, must spend at least 20 percent of his or her working hours in mentoring activities as defined by an authorized agency official. For purposes of this section, mentoring need not be limited to mentoring of an employee who is expected to assume the phased retiree's duties when the phased retiree fully retires.
(b) An authorized agency official may waive the requirement under paragraph (a) of this section in the event of an emergency or other unusual circumstances (including active duty in the armed forces) that, in the authorized agency official's discretion, would make it impracticable for a phased retiree to fulfill the mentoring requirement.
5 U.S.C. 8716; Subpart J also issued under section 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 870.302(a)(3)(ii) also issued under section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec. 870.302(a)(3) also issued under sections 11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105-33, 111 Stat. 251, and section 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 870.302(a)(3) also issued under section 145 of Pub. L. 106-522, 114 Stat. 2472; Secs. 870.302(b)(8), 870.601(a), and 870.602(b) also issued under Pub. L. 110-279, 122 Stat. 2604; Subpart E also issued under 5 U.S.C. 8702(c); Sec. 870.601(d)(3) also issued under 5 U.S.C. 8706(d); Sec. 870.703(e)(1) also issued under section 502 of Pub. L. 110-177, 121 Stat. 2542; Sec. 870.705 also issued under 5 U.S.C. 8714b(c) and 8714c(c); Public Law 104-106, 110 Stat. 521;
(h) Notwithstanding any other provision of this section, the annual pay for a phased retiree, as defined in 5 U.S.C. 8336a and 8412a, is deemed to be the rate of a full-time employee in the position to which the phased retiree is appointed, as determined under 5 CFR 831.1715(a)(2) or 848.205(a)(2), as applicable.
5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246(b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.
(h) Notwithstanding 5 U.S.C. 8906, the Government contribution for phased retirees, as defined in 5 U.S.C. 8336a and 8412a, is the same as that for employees and annuitants as fixed by paragraphs (a) and (b) of this section.
Office of Postsecondary Education, Department of Education.
Notice of proposed rulemaking.
The Secretary proposes to amend the regulations governing the William D. Ford Federal Direct Loan (Direct Loan) Program. The Secretary is proposing to amend these regulations to strengthen and improve the administration of the Federal Direct PLUS Loan Program authorized under title IV of the Higher Education Act of 1965, as amended (HEA).
We must receive your comments on or before September 8, 2014.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
If you are submitting comments electronically, we strongly encourage you to submit any comments or attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), we strongly encourage you to convert the PDF to print-to-PDF format or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the U.S. Department of Education (the Department) to electronically search and copy certain portions of your submissions.
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The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at
Brian Smith or Pamela Moran at (202) 502-7551 or (202) 502-7732 or by email at:
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.
Purpose of This Regulatory Action: These proposed regulations would update the standard for determining if a potential parent or student borrower has an adverse credit history for purposes of eligibility for a Direct PLUS Loan (PLUS loan). Specifically, the proposed regulations would amend the definition of “adverse credit history” and require PLUS loan counseling for a parent or student with an adverse credit history who is approved for a PLUS loan as a result of the Secretary's determination that extenuating circumstances exist. The current regulations governing adverse credit history determinations have not been updated since the Direct Loan Program was established in 1994. The proposed regulations would amend the current regulations to reflect programmatic and economic changes that have occurred since 1994.
Summary of the Major Provisions of This Regulatory Action: The proposed regulations would—
• Revise the student PLUS loan borrower eligibility criteria to state more clearly that the PLUS loan adverse credit history requirements apply to student as well as parent PLUS loan borrowers.
• Add definitions of the terms “charged off” and “in collection” for purposes of determining whether an applicant for a PLUS loan has an adverse credit history.
• Specify that a PLUS loan applicant has an adverse credit history if the applicant has one or more debts with a total combined outstanding balance greater than $2,085 that are 90 or more days delinquent as of the date of the credit report, or that have been placed in collection or charged off during the two years preceding the date of the credit report.
• Provide that the combined outstanding balance threshold of $2,085 may be adjusted over time on a basis determined by the Secretary.
• Revise the provision that specifies the types of documentation the Secretary may accept as a basis for determining that extenuating circumstances exist for a PLUS loan applicant who is determined to have an adverse credit history.
• Specify that an applicant for a PLUS loan who is determined to have an adverse credit history but who documents to the Secretary's satisfaction that extenuating circumstances exist must complete PLUS loan counseling offered by the Secretary before receiving the PLUS loan.
Please refer to the
The proposed regulations would also require that an applicant for a PLUS loan who is determined to have an adverse credit history but who documents to the satisfaction of the Secretary that extenuating circumstances exist must complete PLUS loan counseling offered by the Secretary prior to receiving the loan.
Certain operational changes made by the Department in November 2011 resulted in an increase in the number of PLUS loan applicants who were determined to have an adverse credit history, potentially limiting the financial options and resources available to those applicants. The modifications made in the proposed regulations will increase the number of PLUS loan applicants who pass the adverse credit history check and will not have to request reconsideration of an initial denial under the Department's process for determining whether extenuating circumstances for the adverse credit history condition exist.
Under the proposed regulations, applicants would not need to apply for reconsideration of an initial PLUS loan denial due to an adverse credit history, saving them time and effort. Additionally, because the proposed regulations strike a balance between increased availability of PLUS loan funds to improve student access to postsecondary education and helping to limit overborrowing through improved financial literacy, we believe that there will be benefits for both borrowers and the Department.
To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses, and provide relevant information and data whenever possible, even when there is no specific solicitation of data and other supporting materials in the request for comment. We also urge you to arrange your comments in the same order as the proposed regulations. Please do not submit comments that are outside the scope of the specific proposals in this notice of proposed rulemaking, as we are not required to respond to comments that are outside of the scope of the proposed rule. See the
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.
During and after the comment period, you may inspect all public comments about the proposed regulations by accessing Regulations.gov. You may also inspect the comments in person in room 8055, 1990 K Street NW., Washington, DC, between 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. If you want to schedule time to inspect comments, please contact one of the persons listed under
Section 428B(a)(1)(A) of the HEA provides that to be eligible to receive a Federal PLUS Loan under the Federal Family Education Loan (FFEL) Program, the applicant must not have an adverse credit history, as determined pursuant to regulations promulgated by the Secretary. This same eligibility requirement applies to applicants for PLUS loans under the Direct Loan Program.
Section 685.200(b) and (c) of the Direct Loan Program regulations specifies that graduate and professional students, and parents borrowing on behalf of their dependent children, may borrow PLUS loans if they meet applicable eligibility requirements and do not have an adverse credit history. The regulations that specify what is considered to be an adverse credit history have not been updated since the Direct Loan Program was established in 1994.
In 2010, Congress amended the HEA to end the making of new loans under the FFEL Program effective July 1, 2010. Since that date, all new subsidized and unsubsidized Stafford Loans, PLUS Loans, and Consolidation Loans have been originated in the Direct Loan Program. In implementing this change, the Department found that the operational criteria being used in the Direct Loan Program to determine whether an applicant for a PLUS loan has an adverse credit history were not consistent with the definition of “adverse credit history” in the Direct Loan Program regulations or with the regulations for the FFEL Program. Specifically, the Department determined that PLUS loan applicants who had debts that were in collection or charged off were passing the adverse credit history check even though these applicants were 90 or more days delinquent on a debt, which constitutes an adverse credit history under the Department's regulations. Once the inconsistency was identified, the Department modified its procedures in November 2011 so that borrowers with debts in collection or which were charged off would be considered to have an adverse credit history. This change increased the number of parent and graduate and professional student PLUS loan applicants who were determined to have an adverse credit history and thus, were originally ineligible for a PLUS loan. As a result of the increased initial denial rate, the Department determined that it would be appropriate to review the adverse credit history standards that were originally established in 1994. To reflect programmatic and economic changes that have occurred since 1994, the Department proposes to amend § 685.200(b) and (c) to update the regulatory requirements governing PLUS loan adverse credit history determinations.
On April 16, 2013, we published a document in the
We also invited parties unable to attend a public hearing to submit written comments on the additional topics and to submit other topics for consideration. Transcripts from the public hearings are available at
Written comments submitted in response to the April 16, 2013,
Section 492 of the HEA requires the Secretary to obtain public involvement in the development of proposed regulations affecting programs authorized by title IV of the HEA. After obtaining extensive input and recommendations from the public, including individuals and representatives of groups involved in the title IV, HEA programs, the Secretary must subject the proposed regulations to a negotiated rulemaking process. If negotiators reach consensus on the proposed regulations, the Department agrees to publish without alteration a defined group of regulations on which the negotiators reached consensus unless the Secretary reopens the process or provides a written explanation to the participants stating why the Secretary has decided to depart from the agreement reached during negotiations. Further information on the negotiated rulemaking process can be found at:
On November 20, 2013, the Department published a document in the
The Department sought negotiators to represent the following groups: Students; legal assistance organizations that represent students; consumer advocacy organizations; State higher education executive officers; State Attorneys General and other appropriate State officials; business and industry; institutions of higher education eligible to receive Federal assistance under title III, parts A, B, and F and title V of the HEA, which include Historically Black Colleges and Universities, Hispanic-Serving Institutions, American Indian Tribally Controlled Colleges and Universities, Alaska Native and Native Hawaiian-Serving Institutions, Predominantly Black Institutions, and other institutions with a substantial enrollment of needy students as defined in title III of the HEA; two-year public institutions of higher education; four-year public institutions of higher education; private, non-profit institutions of higher education; private, for-profit institutions of higher education; regional accrediting agencies; national accrediting agencies; specialized accrediting agencies; financial aid administrators at postsecondary institutions; business officers and bursars at postsecondary institutions; admissions officers at postsecondary institutions; institutional third-party servicers who perform functions related to the title IV Federal Student Aid programs (including collection agencies); State approval agencies; and lenders, community banks, and credit unions. The Department considered the nominations submitted by the public and chose negotiators who would represent the various constituencies.
The negotiating committee included the following members:
Chris Lindstrom, U.S. Public Interest Research Group, and Maxwell John Love (alternate), United States Student Association, representing students.
Whitney Barkley, Mississippi Center for Justice, and Toby Merrill (alternate), Project on Predatory Student Lending, The Legal Services Center, Harvard Law School, representing legal assistance organizations that represent students.
Suzanne Martindale, Consumers Union, representing consumer advocacy organizations.
Carolyn Fast, Consumer Frauds and Protection Bureau, New York Attorney General's Office, and Jenny Wojewoda (alternate), Massachusetts Attorney General's Office, representing State attorneys general and other appropriate State officials.
David Sheridan, School of International & Public Affairs, Columbia University in the City of New York, and Paula Luff (alternate), DePaul University, representing financial aid administrators.
Gloria Kobus, Youngstown State University, and Joan Piscitello (alternate), Iowa State University, representing business officers and bursars at postsecondary institutions.
David Swinton, Benedict College, and George French (alternate), Miles College, representing minority serving institutions.
Brad Hardison, Santa Barbara City College, and Melissa Gregory (alternate), Montgomery College, representing two-year public institutions.
Chuck Knepfle, Clemson University, and J. Goodlett McDaniel (alternate), George Mason University, representing four-year public institutions.
Elizabeth Hicks, Massachusetts Institute of Technology, and Joe Weglarz (alternate), Marist College, representing private, non-profit institutions.
Deborah Bushway, Capella University, and Valerie Mendelsohn (alternate), American Career College, representing private, for-profit institutions.
Casey McGuane, Higher One, and Bill Norwood (alternate), Heartland Payment Systems, representing institutional third-party servicers.
Russ Poulin, WICHE Cooperative for Educational Technologies, and Marshall Hill (alternate), National Council for State Authorization Reciprocity Agreements, representing distance education providers.
Dan Toughey, TouchNet, and Michael Gradisher (alternate), Pearson Embanet, representing business and industry.
Paul Kundert, University of Wisconsin Credit Union, and Tom Levandowski (alternate), Wells Fargo Bank Law Department, Consumer Lending & Corporate Regulatory Division, representing lenders, community banks, and credit unions.
Leah Matthews, Distance Education and Training Council, and Elizabeth Sibolski (alternate), Middle States Commission on Higher Education, representing accrediting agencies.
Carney McCullough, U.S. Department of Education, representing the Department.
Pamela Moran, U.S. Department of Education, representing the Department.
The negotiated rulemaking committee met to develop proposed regulations on
At its first meeting, the negotiating committee reached agreement on its protocols and proposed agenda. These protocols provided, among other things, that the committee would operate by consensus. Consensus means that there must be no dissent by any member in order for the committee to have reached agreement. Under the protocols, if the committee reached a final consensus on all issues, the Department would use the consensus-based language in its proposed regulations. Furthermore, the Department would not alter the consensus-based language of its proposed regulations unless the Department reopened the negotiated rulemaking process or provided a written explanation to the committee members regarding why it decided to depart from that language.
During the first meeting, the negotiating committee agreed to negotiate an agenda of six issues related to student financial aid. These six issues were: Clock to credit hour conversion; State authorization of distance education; State authorization of foreign locations of domestic institutions; cash management; retaking coursework; and PLUS loan adverse credit history. Under the protocols, a final consensus would have to include consensus on all six issues.
During the meeting, the Department explained that it planned to include the proposed regulations that would be published after completion of the negotiated rulemaking process in two separate NPRMs. One NPRM would contain the proposed PLUS loan adverse credit history regulations. The second NPRM would contain all the remaining proposed regulations on the negotiating agenda. This is consistent with past practice for publishing NPRMs, as the Department generally publishes proposed loan program regulatory changes separately from proposed regulations for the Student Assistance General Provisions regulations in 34 CFR Part 668 or other title IV, HEA program regulations when there are no shared cross-programmatic or other conforming changes involved.
Non-Federal negotiators encouraged the Department to take action quickly with respect to the PLUS loan adverse credit history regulations. The Department said it would consider designating final regulations resulting from this NPRM for early implementation under section 484(c)(2) of the HEA.
During committee meetings, the committee reviewed and discussed the Department's drafts of regulatory language and the committee members' alternative language and suggestions. At the final meeting on May 20, 2014, the committee did not reach consensus on the Department's proposed regulations. For this reason, and according to the committee's protocols, all parties who participated or were represented in the negotiated rulemaking, in addition to all members of the public, may comment freely on the proposed regulations. For more information on the negotiated rulemaking sessions, please visit:
At the first negotiating session, the non-Federal negotiators asked the Department to provide certain data about the PLUS loan program to the negotiating committee. The non-Federal negotiators asked if the Department could calculate PLUS loan cohort default rates. They also asked for information on PLUS loan volume—both numbers of borrowers and amounts borrowed. Non-Federal negotiators asked to see rates of PLUS loan denials due to an adverse credit history, broken out by school sector. In addition, they asked for data on the frequency of different adverse credit conditions that result in denial of a PLUS loan.
The Department agreed to provide PLUS loan data for the PLUS loan adverse credit history discussion at the second negotiated rulemaking session.
Prior to the second negotiated rulemaking session, the Department provided the non-Federal negotiators with charts containing the following data:
• Debt of PLUS, Parent PLUS, and Grad PLUS Borrowers;
• PLUS Credit Check Denial and Remediation Rates by Sector and by Program Offering;
• Credit Check Declination Rate by Sector by Year;
• Top Five Credit Check Declination Reasons by Sector by Year;
• PLUS Borrower 3-Year Cohort Default Rate; and
• AY 2012-13 Credit Check Approval and Denials.
In addition, during the second session, the Department provided the negotiators with data breaking out PLUS loan disbursements under the Direct Loan and FFEL programs from 2006 to 2010.
The non-Federal negotiators expressed appreciation to the Department for providing the requested data about PLUS loans. The non-Federal negotiators also asked for additional data in connection with the charts showing PLUS loan remediation rates (the rates at which applicants who were initially denied PLUS loans due to an adverse credit history were able to obtain PLUS loans; or, if the parent did not obtain PLUS loans, the rates at which the parent's dependent children were able to receive additional unsubsidized loans) and PLUS loan cohort default rates. The Department agreed to provide this additional data for the third negotiated rulemaking session.
Prior to the third negotiated rulemaking session, in response to the requests made during the second session, the Department provided the non-Federal negotiators with amended versions of the following charts:
• PLUS Credit Check Denial Remediation Rates by Sector and by Program Offering (two versions reflecting breakout of remediation by obtaining an endorser, submitting documentation of extenuating circumstances, or the dependent student's receipt of additional unsubsidized loans); and
• PLUS Borrower Three-Year Cohort Default Rates (broken out by the FFEL and Direct Loan programs).
The proposed regulations would—
• Revise the student PLUS loan borrower eligibility criteria to state more clearly that the PLUS loan adverse credit history requirements apply to graduate or professional student PLUS loan borrowers.
• Add definitions of the terms “charged off” and “in collection” for
• Specify that a PLUS loan applicant has an adverse credit history if the applicant has one or more debts with a total combined outstanding balance greater than $2,085 that are 90 or more days delinquent as of the date of the credit report, or that have been placed in collection or charged off during the two years preceding the date of the credit report.
• Provide that the combined outstanding balance threshold of $2,085 may be adjusted over time on a basis determined by the Secretary.
• Revise the provision that specifies the types of documentation the Secretary may accept as a basis for determining that extenuating circumstance exist for a PLUS loan applicant who is determined to have an adverse credit history.
• Specify that an applicant for a PLUS loan who is determined to have an adverse credit history but who documents to the Secretary's satisfaction that extenuating circumstances exist must complete PLUS loan counseling offered by the Secretary before receiving the loan.
We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.
Some of the non-Federal negotiators contended that there should be different eligibility standards for parent PLUS loan borrowers and graduate and professional student PLUS loans borrowers. These negotiators argued that graduate and professional students should be eligible for PLUS loans without application of the adverse credit history criteria. Alternatively, one non-Federal negotiator requested that the Department consider defining “adverse credit history” differently for graduate and professional student PLUS loan borrowers than for parent PLUS loan borrowers.
We did not agree with the suggestion to have different standards for parent and student PLUS loan applicants. We noted that, pursuant to the HEA, there is a single PLUS loan program that provides loans for both graduate and professional students and parents of dependent students. The statutory requirement that a PLUS loan applicant not have an adverse credit history applies equally to student and parent applicants. We see no basis under the HEA for establishing different regulatory definitions of “adverse credit history” for graduate and professional student applicants and parent PLUS applicants.
Based on its experience in handling PLUS loan applicant requests for reconsideration on the basis of extenuating circumstances, the Department concluded that it was appropriate to update the standards for determining that an applicant has an adverse credit history to reflect programmatic and economic changes since the standards were established in 1994.
We believe that the proposed changes to the PLUS loan adverse credit history regulations will improve the adverse credit history determination process by incorporating some of the circumstances that the Department considers during the reconsideration process into the standards for initial determinations of an adverse credit history. We expect that making these changes to the definition of “adverse credit history” will reduce the number of applicants who, under the current regulations, are initially denied PLUS loans due to an adverse credit history, but upon further review, the Department determines have extenuating circumstances. During the negotiated rulemaking sessions, the committee members discussed how the proposed changes would serve three public interests: (1) Ensuring greater access to higher education for all students and families; (2) ensuring that borrowers do not take out loans that they will be unable to repay without hardship; and (3) protecting the Federal fiscal interest by ensuring that borrowers repay their student loans. Some of the non-Federal negotiators expressed the view that the primary focus of the title IV, HEA programs, including the PLUS loan program, should be increasing access to higher education. These negotiators argued that the lending standards that apply to commercial loans should not be applied to PLUS loans, which serve a compelling public interest. The negotiators expressed the view that it is a parent's (or graduate or professional student's) decision as to whether to borrow a PLUS loan, and in what amount, even if the applicant's financial circumstances or history may indicate that the applicant could experience difficulty in paying it back. One non-Federal negotiator strongly recommended that the Department return to the adverse credit history standard as it had been implemented in the Direct Loan program prior to the changes made in November 2011, under which debts in collection or that were charged off did not constitute adverse credit.
Other non-Federal negotiators argued that the Department should take action to prevent overborrowing by parents and students. These negotiators argued that a return to the standard in the Direct Loan program used prior to November 2011 would encourage both student and parent borrowers to take out greater, perhaps unaffordable, amounts of PLUS loan debt regardless of the financial circumstances or history of the applicant. They also argued that, in addition to ensuring access to higher education, the Department should consider whether or not borrowers could repay these loans.
In expressing their concerns about overborrowing and the potential for high debt loads, some non-Federal negotiators noted that, unlike Direct Subsidized and Direct Unsubsidized loans, there are no annual or aggregate loan limits for PLUS loans and a PLUS loan can be taken out in an amount up to the student's cost of attendance. They further noted that parent PLUS loan borrowers are not eligible for income-driven repayment plans and it is very difficult to qualify for a bankruptcy discharge of a student or parent loan. To that end, some non-Federal negotiators recommended establishing annual and aggregate loan limits for PLUS loan borrowers. We noted that loan limits in the title IV, HEA programs, including the PLUS loan program, are based on the relevant statute, and may not be established through regulation.
Some non-Federal negotiators recommended considering the applicant's ability to repay in an adverse credit history determination in order to prevent overborrowing of PLUS loans. We noted that the HEA would need to be amended to allow consideration of the applicant's ability to repay. Rather, adverse credit history is a measure of an individual's history of repaying existing debt. It does not measure whether the individual has the financial ability to repay a specific level of debt, but whether that individual has repaid debt in the past.
In developing the proposed regulations, we attempted to strike a balance between the public policy interests of ensuring access to higher education while helping to ensure that borrowers do not take out loans that their past financial credit history indicates they will not repay. Based on our experience in evaluating requests for reconsideration based on extenuating circumstances, we expect that more borrowers would qualify for PLUS loans under the adverse credit history standard in the proposed regulations without the need to demonstrate extenuating circumstances.
The proposed definition of “adverse credit history” has several components. Each component is discussed separately in the following sections.
Most of these negotiators recommended indexing the $2,085 amount to the Consumer Price Index (CPI), a measure of inflation determined by the Bureau of Labor Statistics (BLS). However, BLS calculates several different CPI rates on a monthly basis. The CPI rate most commonly used as a measure of inflation is the Consumer Price Index for All Urban Consumers (CPI-U). The Department considered using the CPI-U as the basis for indexing, but decided to invite comment on which index would be most appropriate in this context, and whether to base the adjustment of the $2,085 amount on a measure other than inflation.
One non-Federal negotiator suggested that the Department should adjust the amount of debt annually. This negotiator argued that, while small, short-term changes would have little impact in one year, over a period of time they could have a significant impact. Another non-Federal negotiator suggested using the CPI, but averaging the rate over time. This negotiator noted that averaging the rate over time would smooth out abrupt and relatively short-term changes in CPI and thus reduce volatility.
The Department is open to adjusting the $2,085 amount. Therefore, we are proposing in the regulations that the Secretary may adjust the amount over time, on a basis determined by the Secretary. Any adjustments that the Secretary makes to the $2,085 amount would be announced through a Notice in the
As discussed in the “Operational Issues” section of this preamble, the Department intends to collect, and where appropriate publish, information about the performance of parent and graduate/professional student PLUS loans, including default rate information based on credit history characteristics of Plus loan applicants and individual institutional default rates.
In the absence of a consistent industry-wide standard, we decided to maintain the standard of 90 or more days delinquent in the proposed regulations. We rely on credit reports to determine whether an applicant is delinquent on a debt, as the number of days a debt is past due is included on an individual's credit report until an account is placed in collection. Based on our experience, most creditors send accounts to collection once they are 90 days' delinquent. Once an account is placed in collection, the number of days past due is generally not reflected on the credit report. Therefore, a standard beyond the current 90-day standard would be more difficult to track.
With regard to errors on credit reports, a PLUS loan applicant would have the opportunity during the process for determining whether extenuating circumstances for the adverse credit history condition exist to show that the determination of an adverse credit history was based on an error in the credit report by providing an updated credit report or information from the creditor.
We do not agree that the earlier operational practice met the purposes of the statute in determining an adverse credit history. We believe it would create an inconsistency in the regulations to not consider as an adverse credit history accounts in collection or debts that have been charged off, while including accounts that are 90 or more days delinquent. Generally, accounts in collection or accounts that have been charged off are well past the 90-day delinquency stage.
Although we do not propose to change the treatment of collection accounts and charged-off accounts in the determination of an adverse credit history, we did agree to propose to reduce the period of time for which such accounts would be considered as an adverse credit history. The proposed regulations would reduce the current look-back period of five years to two years preceding the date of the credit report. We believe that this standard would screen out most anomalous conditions, such as a single bad debt on an otherwise clean credit report.
Non-Federal negotiators made varying proposals for the look-back period for debts that are in collection or charged off. Some negotiators recommended a one-year look-back period. We do not believe, however, that one year is sufficient, particularly when the past due status of the account might be reduced through a series of payments, but not eliminated, and then increase again.
Other non-Federal negotiators recommended a three-year look-back period. They argued that, in many States, debts have a statute of limitations of three years. However, because the statute of limitations on debts varies from State to State, we do not think that it is a useful standard in determining the length of the look-back period for collections and charge-offs in the PLUS loan program.
Based on these considerations, we believe that the proposed two-year look-back period for debts that are in collection or have been charged off is appropriate. A one-year look-back period is too short to measure a PLUS loan applicant's history and a five-year
Proposed § 685.200(c)(2)(viii)(D)(
However, the Department is proposing through these regulations that a PLUS loan applicant who is ineligible for a PLUS loan due to an adverse credit history, but who documents to the satisfaction of the Secretary that extenuating circumstances exist, would be required to complete loan counseling as an additional condition for receiving the PLUS loan. The Department also plans to offer enhanced PLUS loan consumer information, as discussed under “Operational Issues.”
The proposed regulations do not apply the loan counseling requirement to a PLUS loan applicant who has an adverse credit history but is eligible to receive a PLUS loan by obtaining an endorser who does not have an adverse credit history. A PLUS loan applicant who obtains an endorser is still primarily responsible for repaying the PLUS loan. The Department believes that these applicants, like PLUS loan applicants who qualify due to extenuating circumstances, would benefit from PLUS loan counseling. Therefore, the Secretary is requesting comment on whether the loan counseling requirement for applicants who qualify due to extenuating circumstances should also apply to applicants who obtain an endorser.
As explained in the “Background” section of this preamble, the Department conducts a credit check on each applicant for a PLUS loan to determine whether he or she has an adverse credit history. A credit check is conducted when a school submits a PLUS loan origination record to the Department's Common Origination and Disbursement (COD) System, or when an applicant for a PLUS loan completes the optional Direct PLUS Loan Request for Supplemental Information (Direct PLUS Loan Request) on the Department's StudentLoans.gov Web site. Alternatively, a school may submit a credit check request for a PLUS loan applicant to the COD System Web site.
Under the Department's current procedures, an approved credit check remains valid for purposes of determining an applicant's eligibility to receive a PLUS loan for 90 days from the date on which the credit check was performed. That is, any action that would normally trigger a credit check (for example, the submission of a Direct PLUS Loan Request or a PLUS loan origination record) will not do so if a prior credit check on the applicant was conducted within the past 90 days. This 90-day window reflects the Department's long-standing practice in the Direct Loan Program and is consistent with the standard previously used by most FFEL Program lenders when conducting credit checks on applicants for Federal PLUS Loans. The 90-day window is not in the Direct Loan Program regulations, but it was adopted by the Department as a reasonable standard for ensuring that a credit check is conducted within a timeframe that will result in an accurate representation of a PLUS loan applicant's current credit history prior to the receipt of PLUS loan funds.
During the negotiations, many of the non-Federal negotiators expressed concern that the current 90-day period is not a long enough period of validity for the credit check when disbursing PLUS loans. They noted that, in certain situations, the requirement that a new credit check be conducted (if the most recent credit check was more than 90 days in the past) can mean that a PLUS loan applicant who was initially approved for a PLUS loan for the purpose of a school's financial aid award packaging for the upcoming academic year may later be denied the loan if an event that triggers another credit check occurs more than 90 days after the date of the prior credit check, and if the subsequent credit check determines that the borrower has an adverse credit history. For example, if a student or parent was approved for a PLUS loan for the purpose of a school's financial aid award packaging for the upcoming academic year based on the results of a credit check that was completed when the applicant submitted a Direct PLUS Loan Request, but the school is not able to submit the PLUS loan origination record within 90 days of the date of that credit check, a second credit check will be conducted when the loan origination record is submitted.
Similarly, an individual who received a PLUS loan based on the results of a credit check may later request additional loan funds by submitting another Direct PLUS Loan Request and indicating that he or she wants to increase the amount of an existing PLUS loan. If the borrower submits the Direct PLUS Loan Request more than 90 days after the date of the prior credit check, another credit check will be conducted. In both instances, the subsequent credit check may potentially result in a determination that the borrower now has an adverse credit history (if the applicant's financial circumstances have changed since the date of the prior credit check), and therefore is ineligible for a PLUS loan or for an increased loan amount, even though the borrower was
Many of the non-Federal negotiators stated that applicants who are determined to be eligible to receive a PLUS loan based on the results of a credit check should be able to rely on that approval if they later need to request an increase in the amount of an existing loan. Accordingly, some of these negotiators suggested that the Department should consider changing its procedures so that the results of a credit check would remain valid for a full year after the date of the credit check. Other negotiators proposed that the Department go even further and make a credit check valid for the purpose of a parent's or student's eligibility to receive PLUS loans for the duration of a student's program of study if the borrower was not determined to have an adverse credit history.
After considering the concerns expressed by some of the non-Federal negotiators, the Department has decided to modify its procedures so that a credit check that indicates that the applicant does not have an adverse credit history would remain valid for 180 days. We believe that extending the window for an even longer period of time would result in borrowers receiving PLUS loan funds based on credit checks that do not reasonably reflect the applicant's most current financial circumstances. However, extending the window from the current 90 days to 180 days should satisfactorily address the concerns raised by some of the negotiators.
Although the Department agreed with the non-Federal negotiators that it would be appropriate to extend the period of time during which an approved credit check is valid, the Department also reminded the negotiators that under current procedures it is possible for a school to process a borrower's request for an increase in the amount of an existing PLUS loan without subjecting the borrower to a second credit check. In such cases, a school may simply submit an upward adjustment to the amount of an existing PLUS loan to the COD system, without submitting a new PLUS loan origination record. The submission of an upward adjustment will not trigger a new credit check, regardless of the date of the most recent credit check for the borrower. Also, it is not mandatory for borrowers to request an increase in the amount of an existing loan by submitting a Direct PLUS Loan Request, which may trigger a second credit check. A school may obtain a borrower's request for a loan amount increase by other means.
As discussed under the “Extenuating Circumstances” section of this preamble, the negotiating committee discussed methods for improving access to consumer information for PLUS loan applicants. In particular, many non-Federal negotiators believed that there is currently a lack of sufficient consumer information specifically targeted at parent PLUS loan applicants.
The Department agrees with the concerns expressed by the negotiators and will develop enhanced consumer information and resources for parent PLUS applicants that could be incorporated within the existing PLUS loan application process or made available to parents through links to information on other Department Web sites. At a minimum, the Department will offer voluntary entrance counseling to all parent PLUS applicants which would provide clear information on the monthly payment that would be required for the loan the applicant is requesting as well as what the total monthly payment would be if the applicant borrows the same amount for each year of a dependent student's four-year or six-year undergraduate program. In addition, the Department will expand its current online financial tools to include a PLUS-specific loan calculator that would allow parents to evaluate their future ability to repay PLUS loans based on their individual economic circumstances.
The Department intends to collect, and where appropriate publish, information about the performance of parent and graduate/professional student PLUS loans, including default rate information based on credit history characteristics of PLUS loan applicants and individual institutional default rates. Providing more detailed information about the PLUS loan program will assist the Department in evaluating the definition of adverse credit history in the future and will allow institutions to understand the impact of PLUS loan borrowing on students and parents in order to help them better support their parent and student PLUS borrowers.
We invite suggestions for the specific types of enhanced consumer information that the Department should develop for PLUS applicants, particularly parent PLUS applicants who may be planning to borrow for more than one dependent over multiple academic years. We also invite comments on what other types of information about Parent PLUS loans would be helpful for institutions and consumers, and we invite suggestions on the most effective way for the Department to communicate with parent PLUS borrowers.
The Department makes Direct PLUS Loans to graduate or professional students and to parents of dependent undergraduate students to help pay for education expenses not covered by other financial aid. According to data from the Department's Federal Student Aid (FSA) office, approximately 3.9 million borrowers owe a balance of $100 billion in total Direct PLUS loans. The Department is proposing these regulations to update the standard for determining if a potential borrower has an adverse credit history for purposes of eligibility for a Direct PLUS loan.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits to borrowers and institutions. Based on the analysis that follows, the Department believes that these proposed regulations are consistent with the principles in Executive Order 13563.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
This Regulatory Impact Analysis is divided into five sections. The “Need for Regulatory Action” section discusses why updating the regulatory requirements governing PLUS loan adverse credit history determinations is necessary.
The “Summary of Proposed Regulations” section briefly highlights the updates, revisions, and new requirements for PLUS loan applicants that are included in the proposed regulations.
The “Costs, Benefits, and Transfers” section discusses the impact of the proposed regulations on institutions of higher education, students, and parents. We anticipate that the proposed regulations would result in a lower denial rate for PLUS loan applicants. For some parents and graduate and professional students who would be denied PLUS loans under the current standards, the proposed regulations would allow them to borrow a PLUS loan in an amount up to the cost of attendance.
Under “Net Budget Impacts,” we present our estimate that the proposed regulations would not have a significant net budget impact on the Federal government.
In “Alternatives Considered,” we describe other approaches we considered for key provisions of the proposed regulations, including different definitions for adverse credit history for parents and graduate students, criteria regarding the borrower's ability to repay as part of the adverse credit history definition, indexing the $2,085 threshold amount to the rate of inflation, increasing the delinquency period of 90 or more days past due, and increasing the length of time for the look-back period for debts that are in collection or charged off.
Congress amended the HEA in 2010 to end the origination of new loans under the FFEL Program. All new subsidized and unsubsidized Stafford Loans, PLUS Loans, and Consolidation Loans are made under the Direct Loan Program. To be eligible for a Federal Direct PLUS loan, under the statute, an applicant must not have an adverse credit history. To determine if an applicant has an adverse credit history the Department conducts a credit check on the applicant. A PLUS loan applicant is considered to have an adverse credit history if the credit report shows the applicant is 90 days delinquent on any debt, or has been the subject of a default determination, bankruptcy discharge, foreclosure, repossession, tax lien, wage garnishment, or write-off of a title IV, HEA program debt in the five years preceding the date of the credit report.
Since 2011, we have made operational changes to improve compliance with the regulations and the practices of the FFEL program. Specifically, the Department applied operational standards that were similar to those in the FFEL program where an applicant with debts in collection or charged off is considered to have an adverse credit history because the applicant is 90 or more days delinquent on a debt. Based on these standards, more PLUS loan applicants were determined to have an adverse credit history and had to request reconsideration of the PLUS loan denial through the Department's process for determining whether extenuating circumstances for an adverse credit history condition exist. After these changes resulted in an increase in PLUS loan denials, the Department made operational changes to balance making the Direct Loan PLUS program consistent with the old FFEL regulations and the public policy goal of maintaining access to higher education. In the interest of providing transparency to institutions and families, we concluded that the operational changes that the Department instituted in its operating procedures should be updated in the regulatory requirements governing PLUS loan adverse credit history determinations, which were originally established in 1994.
The proposed regulations would update the standard for determining if a potential borrower has an adverse credit history and more specifically would amend the definition of “adverse credit history” and require PLUS loan counseling for a parent or student with an adverse credit history who is approved for a PLUS loan as a result of the Secretary's determination that extenuating circumstances exist.
The proposed regulations would update the eligibility requirements for a PLUS loan. Specifically, the proposed regulations would state more clearly that the PLUS loan adverse credit history requirements apply to graduate student PLUS loan borrowers, as well as parent PLUS borrowers. In addition, the proposed regulations would define the terms “in collection” and “charged off” for purposes of determining whether an applicant for a PLUS loan has an adverse credit history. They would also specify that a PLUS loan applicant has an adverse credit history if the applicant has one or more debts with a total combined outstanding balance greater than $2,085 that are 90 or more days delinquent as of the date of the credit report, or that have been placed in collection or charged off during the two years preceding the date of the credit report. The proposed regulations would provide that the debt threshold of a combined outstanding balance greater than $2,085 may be adjusted over time
Under the proposed regulations, the Department expects that the number of approved applications for parent and graduate and professional student PLUS loans will increase from 2012-2013 levels, and that this will result in a series of costs, benefits, and transfers. The most significant factor leading to this increase is expected to be the establishment of a new standard for the determination that an applicant has an adverse credit history. In particular, under the proposed regulations, an adverse credit history means that the applicant has one or more debts with a total combined outstanding balance greater than $2,085 that are 90 or more days delinquent as of the date of the credit report, or that have been placed in collection or charged off during the two years preceding the date of the credit report.
Over 70 percent of the PLUS loan application denials in the past three academic years have been a result of delinquent debt that was held by the original creditor, charged off, or was in collection status.
We estimate that, under the proposed regulations, approximately 33 percent of the applicants who were initially denied PLUS loans in the 2012-2013 award year would have been approved in the initial process.
We also believe that the proposed regulations would clarify the process by which applicants request reconsideration, and possibly increase the percentage of denied loan applicants who eventually qualify for PLUS loans after requesting reconsideration or obtaining an endorser who does not have an adverse credit history.
Parent PLUS loan applicants and their dependent students would be affected by the proposed regulations. Under the proposed regulations, a larger number of parent PLUS loan applicants would be approved for PLUS loans on behalf of their dependent students. As a result, some families could accrue higher loan debt amounts.
Unlike Direct Subsidized and Unsubsidized loans, PLUS loans do not have annual or lifetime aggregate limits. PLUS loans can be borrowed in any amount up to and including the full cost of attendance, which is an amount that is determined by individual institutions and is beyond the control of the Department.
In the 2011-2012 award year, the median total PLUS loan debt for a parent who borrowed a PLUS loan at any point for a dependent undergraduate student ages 18 to 24 in the student's fourth (senior) year or above was $27,700.
Parents who take out PLUS loans on behalf of their dependent children are acquiring some of the debt burden associated with their child's education. Parent PLUS loans have higher interest rates and origination fees than Direct Subsidized and Direct Unsubsidized loans.
In the example that follows, the Department compares two sample borrowers to show the potential impact of borrowing under the parent PLUS Loan Program compared to borrowing up to the annual Direct Loan limits for independent students. Student A's parent applied for a parent PLUS loan; however, Student A's parent was not approved for parent PLUS loans in any of the four years. Therefore, Student A was eligible to borrow Unsubsidized Stafford loans up to the independent borrower limits. Students B's parent was approved for parent PLUS loans for all four years to help pay for Student B's college education. The total amount borrowed by each of the families in this example is equal. The example also assumes that both borrowers took out loans every year of college, the student graduated in four years, and repayment began following graduation. Student A deferred all payments on the
As this example demonstrates, at the identical school, the combined parent-student debt upon entering repayment would be higher for the family of Student B than the total debt of Student A because of the higher interest rates (currently 7.21 percent for Direct PLUS loans and 4.66 percent for Direct Subsidized and Unsubsidized loans) and origination fees (currently 4.28 percent for Direct PLUS loans
Borrowers may choose to make payments on their loans while in school to decrease the accumulation of interest and decrease the amount of loan debt owed after leaving school. Furthermore, loan disbursement dates and amounts vary by campus. Individual debt loads for borrowers under any loan program will be impacted by borrower behavior.
As borrowers enter into repayment, their loan payments and principal balance amounts will also be impacted by borrower behavior. Benefits such as loan consolidation, forbearance, deferment, and loan forgiveness can have an impact on their overall loan payments.
Increased access to PLUS loans may allow some students to continue their attendance in programs that they otherwise would not be able to afford. While some applicants may use additional Direct Unsubsidized loans to cover their educational expenses after their applicant parents have been denied PLUS loans, others may be unable to make up the difference because of annual or lifetime aggregate limits on Stafford loans. This could result in a student having to withdraw from a particular education program, transfer to another program or institution, or find additional means of financing his or her education, such as private student loans. Since PLUS loans can be borrowed up to the cost of attendance, they may be used to more fully cover funding gaps for dependent students who have exhausted their annual or lifetime aggregate limits for Direct Subsidized and Unsubsidized loans or allow students to attend a more expensive institution. PLUS loans often help lower-income students who may lack the personal or family resources to pay for college.
PLUS loans are generally a better option for students than private student loans. PLUS loans have fixed interest rates and offer more flexibility in respect to repayment plans (such as extended and graduated repayment plans). PLUS loans also offer important consumer protections such as deferments for unemployment, active
Applicants with an adverse credit history who qualify for a PLUS Loan by demonstrating extenuating circumstances will be required to participate in loan counseling provided by the Department. This requirement could help PLUS loan applicants to make informed decisions and to avoid over-borrowing for their own or their child's education.
The proposed regulations are not estimated to have a significant net budget impact over the loan cohorts from 2014 to 2024. Consistent with the requirements of the Credit Reform Act of 1990, budget cost estimates for the student loan programs reflect the estimated net present value of all future non-administrative Federal costs associated with a cohort of loans. (A cohort reflects all loans originated in a given fiscal year.)
In general, student loan cost estimates are developed using OMB's Credit Subsidy Calculator. The OMB calculator takes projected future cash flows from the Department's student loan cost estimation model and produces discounted subsidy rates reflecting the net present value of all future Federal costs associated with awards made in a given fiscal year. Values are calculated using a “basket of zeros” methodology under which each cash flow is discounted using the interest rate of a zero-coupon Treasury bond with the same maturity as that cash flow. To ensure comparability across programs, this methodology is incorporated into the calculator and used government-wide to develop estimates of the Federal cost-of-credit programs. Accordingly, we believe that it is the appropriate methodology to use in developing estimates for the proposed regulations. That said, in developing the following Accounting Statement, the Department consulted with OMB on how to integrate our discounting methodology with the discounting methodology traditionally used in developing regulatory impact analyses.
The operational changes to adverse credit history determinations made in 2011 have already been incorporated into the Department's budget baseline. The changes in the proposed regulations, including (1) using $2,085 as an upfront threshold amount in the determination of an adverse credit history, and (2) the reduced look-back period of two years for accounts in collection and accounts that have been charged off to trigger a determination of adverse credit, would likely decrease the number of PLUS loan applicants denied loans based on an adverse credit history determination. This could increase PLUS loan volumes, and decrease the amount of additional Direct Unsubsidized loans taken out by student borrowers whose parents cannot obtain PLUS loans because of adverse credit determinations. Generally, an increase in PLUS loan volume results in net budget savings because of the negative subsidy rate on the overall PLUS loan portfolio.
However, loans made to borrowers who would have been considered to have an adverse credit history before the changes in the proposed regulations could have a higher incidence of default or could be difficult for borrowers to repay. If that were the case, potential savings from any increased PLUS loan volume resulting from the proposed regulations would be reduced or even reversed. The Department does not have data to determine if borrowers who would have been considered to have an adverse credit history in the absence of the proposed regulations have a greater incidence of default or repayment difficulty, but, if a subsidy rate were available for this subgroup of PLUS borrowers, it would likely differ from the overall PLUS subsidy rate. The budget baseline already reflects the $2,085 threshold amount as currently used in the Department's process for considering requests for reconsideration and most of the charged-off accounts or accounts in collection that would result in an adverse credit determination fall within the two-year period that would still be in effect under the proposed regulations. These factors could limit the increase in PLUS loan volume associated with the changes in the proposed regulations. Therefore, the Department has not estimated significant savings from the proposed regulations.
In developing these estimates, a wide range of data sources were used, including data from the National Student Loan Data System; operational and financial data from Department of Education systems, including the Fiscal Operations Report and Application to Participate (FISAP) from institutions; and data from a range of surveys conducted by the National Center for Education Statistics such as the 2011-2012 National Postsecondary Student Aid Survey and the 2004/09 Beginning Postsecondary Student Survey. Data from other sources, such as the U.S. Census Bureau, were also used.
As required by OMB Circular A-4 (available at
The Department considered various alternatives in developing these proposed regulations, including different definitions of adverse credit history for parents and graduate students, criteria regarding the borrower's ability to repay as part of the adverse credit history definition, indexing the $2,085 amount to the rate of inflation, increasing the delinquency period of 90 or more days past due, and increasing the length of time for the look-back period for debts that are in collection or charged off.
Some of the non-Federal negotiators contended that there should be different eligibility standards for PLUS loans for parents and students. These negotiators argued that graduate and professional students should be eligible for PLUS loans without application of the adverse credit history criteria.
Alternatively, one non-Federal negotiator requested that the Department consider defining “adverse credit history” differently for graduate and professional student PLUS loan borrowers than for parent PLUS loan borrowers.
We considered these proposals but concluded that the statutory requirement that a PLUS loan borrower not have an adverse credit history applies equally to student and parent borrowers.
Some non-Federal negotiators recommended including criteria regarding the borrower's ability to repay in the “adverse credit history” definition, to prevent overborrowing of PLUS loans. However, the Department determined that the HEA does not currently authorize consideration of the borrower's ability to repay in the determination of an adverse credit history.
Several of the non-Federal negotiators recommended that the Department index the $2,085 debt threshold amount to the rate of inflation. The majority of these negotiators suggested that the Department use the CPI, a measure of inflation determined by the Bureau of Labor Statistics, as the basis for the indexing.
The Department considered using the CPI-U as the basis to index, but ultimately decided not to include this in the proposed regulations. Instead, the Department invites public comment on what an appropriate adjustment would be to take into account the effects of inflation, as well as suggestions for other bases for adjusting the $2,085 threshold amount over time, including measures of growth or decline in other types of consumer debt.
Some of the non-Federal negotiators argued that the proposed delinquency period of 90 or more days past due is too short for adverse credit history determinations. These negotiators recommended extending the period to 120 days or 180 days past due. They asserted that credit reports often have errors that may not be corrected during a 90-day timeframe.
In the absence of a consistent industry-wide standard, we decided to maintain the standard of 90 or more days delinquent in the proposed regulations. We rely on credit reports to determine whether an applicant is delinquent on a debt, as the number of days a debt is past due is included on an individual's credit report until an account is placed in collection. Based on our experience, most creditors send accounts to collection once they are 90 days' delinquent. Once an account is placed in collection, the number of days past due is generally not reflected on the credit report. Therefore, a standard beyond the current 90-day standard would be more difficult to track. And a borrower with a longer delinquency would still be able to request reconsideration of the PLUS loan denial under the process for determining if extenuating circumstances exist, which would allow the borrower the opportunity to explain the individual circumstances raised by the negotiators.
Non-Federal negotiators made varying proposals regarding the look-back period for debts that are in collection or charged off. Some negotiators recommended a one-year look-back period while other negotiators suggested a three-year look-back period. The Department considered these proposals but determined that it was appropriate to propose a two-year look-back period. Based on the Department's review of consumer credit standards, the age of a consumer's delinquent or defaulted debt bears significantly on a consumer's credit history. While varying substantially based on the type of credit infraction, typically most negative items have little impact after two years. Furthermore, as the chart from VantageScore shows below, a decline in a consumer's credit score from a substantially severe infraction such as a default can be remediated within about 18 months.
The Department's adverse credit history evaluation of 90-day debt delinquencies, including charge-offs and collections, is based upon an account's current status, but it does not take into account whether the debts have been delinquent for a long period of time or entered collections or were charged off years ago. Several other State student lenders, Federal agencies, and some other lenders take into account the age of the delinquent debt in question when underwriting. For example, the Maine Loan, a product offered by the Maine Educational Loan Authority, requires that applicants have no record of a paid or unpaid charge-off in the last two years.
The proposed regulations will affect institutions that participate in the title IV, HEA programs, including alternative certification programs not housed at institutions, and individual borrowers. The U.S. Small Business Administration (SBA) Size Standards define for-profit institutions as “small businesses” if they are independently owned and operated and not dominant in their field of operation, with total annual revenue below $7,000,000. The SBA Size Standards define nonprofit institutions as “small organizations” if they are independently owned and operated and not dominant in their field of operation, or as “small entities” if they are institutions controlled by governmental entities with populations below 50,000. The number of title IV, HEA-eligible institutions that are small entities would be limited because of the revenues involved in the sector that would be affected by the proposed regulations and the concentration of ownership of institutions by private owners or public systems. However, the definition of “small organization” does not factor in revenue. Accordingly, several of the entities subject to the proposed regulations are “small entities,” and we have prepared this Initial Regulatory Flexibility Analysis.
The proposed regulations would update the standards for determining whether a parent or student has an adverse credit history for purposes of eligibility for a Direct PLUS Loan. The proposed regulations would require PLUS loan counseling for a parent or student with an adverse credit history who obtains a PLUS loan as a result of the Secretary's determination that extenuating circumstances exist.
Current Direct Loan regulations (34 CFR 685.200(b) and (c)) specify that graduate and professional students, and parents borrowing on behalf of their dependent children, may borrow PLUS loans. PLUS loan borrowers must meet applicable eligibility requirements.
The proposed regulations would affect the approximately 7,500 institutions that participate in the title IV, HEA loan programs, as the amount and composition of title IV, HEA program aid that is available to students affects students' enrollment decisions and institutional choice. Approximately 60 percent of institutions of higher education qualify as small entities. Using data from the Integrated Postsecondary Education Data System, we estimate that 4,365 institutions qualify as small entities—1,891 are nonprofit institutions, 2,196 are for-profit institutions with programs of two years or less, and 278 are for-profit institutions with four-year programs.
The proposed regulations would not change the reporting requirements related to PLUS loans for institutions. Accordingly, the Department does not expect a change in institutional burden from the proposed regulations. However, PLUS loan borrowers with an adverse credit history who request reconsideration based on extenuating circumstances must provide satisfactory documentation that extenuating circumstances exist, and would be required to complete loan counseling offered by the Secretary.
The proposed regulations are unlikely to conflict with or duplicate existing Federal regulations.
As described above, the Department conducted a negotiated rulemaking process to develop the proposed regulations and considered a number of options for some of the provisions. No alternatives were aimed specifically at small entities.
As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents. The table at the end of this section summarizes the estimated burden on small entities, primarily institutions and applicants, arising from the paperwork associated with the proposed regulations.
Section 685.200 contains information collection requirements. Under the PRA, the Department has submitted a copy of the section, and will submit the Information Collections Request (ICR) to OMB for its review.
A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the PRA and the corresponding information collection instrument displays a currently valid OMB control number. Notwithstanding any other provision of law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number.
In the final regulations, we will display the control numbers assigned by OMB to any information collection requirements proposed in this NPRM and adopted in the final regulations. The burden associated with the new regulatory provisions would be accounted for in a new information collection.
The current regulations allow PLUS loan applicants who have been denied a PLUS loan due to an adverse credit history determination to submit documentation of extenuating circumstances to the Secretary and request reconsideration of the loan application. The proposed regulations would require that a PLUS loan applicant who is determined to be eligible for a PLUS loan after reconsideration complete loan counseling offered by the Secretary.
Our 2013-14 data show that there were 8,452 requests from graduate or professional students at private for-profit institutions for reconsideration of a PLUS loan application based on extenuating circumstances; therefore, we estimate the burden would increase by 8,452 hours (7,607 approved reconsideration requests, divided by 90 percent, multiplied by 1 hour per request) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 23,804 requests from graduate or professional students at private nonprofit institutions for reconsideration of a PLUS loan application based on extenuating circumstances; therefore, we estimate the burden would increase by 23,804 hours (21,424 approved requests for reconsideration, divided by 90 percent, multiplied by 1 hour per request) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 14,056 requests from graduate or professional students for reconsideration of a PLUS loan application based on extenuating circumstances; therefore, we estimate the burden would increase by 14,056 hours (12,650 approved requests for reconsideration, divided by 90 percent, multiplied by 1 hour per request) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 1,672 requests from graduate or professional students at foreign institutions for reconsideration of a PLUS loan application based on extenuating circumstances; therefore, we estimate the burden would increase by 1,672 hours (1,505 approved requests for reconsideration, divided by 90 percent, multiplied by 1 hour per request) under OMB Control Number 1845-NEW1.
The total increase in burden for § 685.200(b)(5) would be 47,984 hours under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 8,458 submissions from parents of students at private for-profit institutions for reconsideration of a PLUS loan application based on extenuating circumstances; therefore, we estimate the burden would increase by 8,458 hours (7,612 approved requests for reconsideration, divided by 90 percent, multiplied by 1 hour per request) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 43,008 submissions from the parents of students at private nonprofit institutions for reconsideration based on extenuating circumstances; therefore, we estimate the burden would increase by 43,008 hours (38,707 approved requests for reconsideration, divided by 90 percent, multiplied by 1 hour per request) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 64,118 requests from parents of students at public institutions for reconsideration based on extenuating circumstances; therefore, we estimate the burden would increase by 64,118 hours (57,706 approved requests for reconsideration, divided by 90 percent, multiplied by 1 hour per request) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 210 requests from parents of students at foreign institutions for reconsideration based on extenuating circumstances; therefore, we estimate the burden would increase by 210 hours
The total increase in burden for § 685.200(c)(2)(viii)(A)(
We estimate the burden associated with the loan counseling requirement under proposed § 685.200(c)(2)(viii)(A)(
Our 2013-14 data show that there were 7,607 approved requests for reconsideration based on extenuating circumstances from graduate or professional students at private for-profit institutions; therefore, we estimate the burden would increase by 1,293 hours (7,607 approved requests for reconsideration multiplied by 0.17 hours per additional counseling components) under OMB Control Number 1845-NEW1.
Under proposed § 685.200(b)(5), our 2013-14 data show that there were 21,424 approved requests for reconsideration based on extenuating circumstances from graduate or professional students at private nonprofit institutions; therefore, we estimate the burden would increase by 3,642 hours (21,424 approved requests for reconsideration multiplied by 0.17 hours per additional counseling components) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 12,650 approved requests for reconsideration based on extenuating circumstances from graduate or professional students at public institutions; therefore, we estimate the burden would increase by 2,151 hours (12,650 approved requests for reconsideration multiplied by 0.17 hours per additional counseling components) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 1,505 approved requests for reconsideration based on extenuating circumstances from graduate or professional students at foreign institutions; therefore, we estimate the burden would increase by 256 hours (1,505 approved requests for reconsideration multiplied by 0.17 hours per additional counseling components) under OMB Control Number 1845-NEW1.
The total increase in burden for § 685.200(b)(5) would be 7,342 hours under OMB Control Number 1845-NEW1.
Under the proposed regulations, there would be a new requirement that a parent PLUS loan applicant who is determined to be eligible for a loan based on extenuating circumstances would need to participate in loan counseling before receiving a loan. Therefore, we estimate that, on average, each parent PLUS loan borrower who is determined to be eligible on the basis of extenuating circumstances would take 45 minutes to complete a PLUS loan counseling session.
Our 2013-14 data show that there were 7,612 approved requests for reconsideration from parents of students at private for-profit institutions based on extenuating circumstances; therefore, we estimate the burden would increase by 5,709 hours (7,612 approved requests for reconsideration multiplied by 0.75 hours per PLUS loan counseling session) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 38,707 approved requests for reconsideration from the parents of students at private nonprofit institutions based on extenuating circumstances; therefore, we estimate the burden would increase by 29,030 hours (38,707 approved requests for reconsideration times 0.75 hours per PLUS loan counseling session) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 57,706 approved requests for reconsideration from parents of students at public institutions based on extenuating circumstances; therefore, we estimate the burden would increase by 43,280 hours (57,706 approved requests for reconsideration multiplied by 0.75 hours per PLUS loan counseling session) under OMB Control Number 1845-NEW1.
Our 2013-14 data show that there were 189 approved requests for reconsideration from parents of students at foreign institutions based on extenuating circumstances; therefore, we estimate the burden would increase by 142 hours (189 approved requests for reconsideration multiplied by 0.75 hours per PLUS loan counseling session) under OMB Control Number 1845-NEW1.
The total increase in burden for § 685.200(c)(2)(viii)(A)(
Overall, burden would increase by 249,281 hours under OMB Control Number 1845-NEW1.
Consistent with the discussion above, the following chart describes the sections of the proposed regulations involving information collections, the information being collected, and the collections that the Department will submit to OMB for approval and public comment under the PRA, and the estimated costs associated with the information collections. The monetized net costs of the increased burden on applicants and borrowers, using wage data developed using BLS data, available at
If you want to comment on the proposed information collection requirements, please send your comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for U.S. Department of
We have prepared an Information Collection Request (ICR) for this collection. In preparing your comments you may want to review the ICR, which is available at
We consider your comments on this proposed collection of information in—
• Deciding whether the proposed collection is necessary for the proper performance of our functions, including whether the information will have practical use;
• Evaluating the accuracy of our estimate of the burden of the proposed collection, including the validity of our methodology and assumptions;
• Enhancing the quality, usefulness, and clarity of the information we collect; and
• Minimizing the burden on those who must respond. This includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
These programs are not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Administrative practice and procedure, Colleges and universities, Consumer protection, Grant programs—education, Loan programs—education, Reporting and recordkeeping requirements, Student aid, Vocational education.
For the reasons discussed in the preamble, the Secretary of Education proposes to amend part 685 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1070g, 1087a,
(c)
(i)
(ii)
(2)
(i) The parent is borrowing to pay for the educational costs of a dependent undergraduate student who meets the requirements for an eligible student under 34 CFR part 668.
(ii) The parent provides his or her and the student's social security number.
(iii) The parent meets the requirements pertaining to citizenship and residency that apply to the student under 34 CFR 668.33.
(iv) The parent meets the requirements concerning defaults and overpayments that apply to the student in 34 CFR 668.32(g).
(v) The parent complies with the requirements for submission of a Statement of Educational Purpose that apply to the student under 34 CFR part 668, except for the completion of a Statement of Selective Service Registration Status.
(vi) The parent meets the requirements that apply to a student under paragraph (a)(1)(iv) of this section.
(vii) The parent has completed repayment of any title IV, HEA program assistance obtained by fraud, if the parent has been convicted of, or has pled nolo contendere or guilty to, a crime involving fraud in obtaining title IV, HEA program assistance.
(viii)(A) The parent—
(
(
(
(B) For purposes of this paragraph (c), an adverse credit history means that the parent—
(
(
(C) For purposes of this paragraph (c), the Secretary does not consider the absence of a credit history as an adverse credit history and does not deny a Direct PLUS loan on that basis.
(D) For purposes of this paragraph (c), the Secretary may determine that extenuating circumstances exist based on documentation that may include, but is not limited to—
(
(
(
(b) Members of the Advisory Council shall be appointed by the Secretary of Commerce, in consultation with the Trade Promotion Coordinating Committee (TPCC), which was authorized by statute in 1992 (15 U.S.C. 4727) and established by Executive Order 12870 of September 30, 1993.
(b) In providing the advice described in subsection (a) of this section, the Advisory Council shall provide information, analysis, and recommendations to the President that address the following, in addition to other topics deemed relevant by the President, the Secretary of Commerce, or the Advisory Council:
(b) Members of the Advisory Council shall serve without either compensation or reimbursement of expenses.
(c) The Secretary of Commerce shall designate a senior officer or employee of the Department of Commerce to serve as the Executive Director for the Advisory Council.
(d) The Secretary of Commerce shall consult with the TPCC on matters and activities pertaining to the Advisory Council, including on activities related to implementation of the advice of the Advisory Council. The Secretary of Commerce shall invite representatives of TPCC agencies to attend meetings of the Advisory Council when issues relevant to their responsibilities are to be considered.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Insofar as the Federal Advisory Committee Act (5 U.S.C. App.) (the “Act”) may apply to the Advisory Council, any functions of the President under the Act, except for those in section 6 of the Act, shall be performed by the Secretary of Commerce in accordance with the guidelines that have been issued by the Administrator of General Services.