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Farm Service Agency, USDA.
Interim final rule.
The Farm Service Agency (FSA) is amending the Farm Loan Programs (FLP) regulations for loan making and servicing on eligibility conditions for certain legal entities, allowing additional flexibility for loan applicants to meet the required farming experience, and increasing the maximum total indebtedness on Microloans (ML) to $50,000. The changes implement provisions of the Agricultural Act of 2014 (2014 Farm Bill). The changes will help increase the number of entities eligible to participate in certain FLP loans and adjust to better reflect the changes in the way farms are owned and operated by legal entities. The changes will allow FSA to extend credit and servicing to family farm operations that may have been ineligible under existing regulations.
We invite you to submit comments on this rule. In your comment, please specify RIN 0560-AI25 and include the volume, date, and page number of this issue of the
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Comments will be available for viewing online at
Steven K. Ford; telephone: (202) 304-7932. Persons with disabilities or who require alternative means for communications (Braille, large print, audiotape, etc.) should contact the USDA Target Center at (202) 720-2600 (voice).
FSA makes and services a variety of direct and guaranteed loans to farmers who are temporarily unable to obtain private commercial credit. FSA also provides direct loan customers with credit counseling and supervision to enhance their opportunity for success. FSA loan applicants are often beginning farmers and socially disadvantaged farmers who do not qualify for conventional loans because of insufficient net worth or established farmers who have suffered financial setbacks due to natural disasters or economic downturns. FSA loans are tailored to a customer's needs and may be used to buy farmland and to finance agricultural production.
As discussed below, this rule amends the FLP regulations for loan making and servicing on eligibility conditions for certain legal entities, allowing additional flexibility for loan applicants to meet the required farming experience, and increasing the maximum total indebtedness on ML to $50,000.
FSA is implementing the amendments included in this rule in keeping with the related provisions in the 2014 Farm Bill (Pub. L. 113-79).
Sections 5001, 5002, 5101, and 5201 of the 2014 Farm Bill amend eligibility criteria in the Consolidated Farm and Rural Development Act (CONACT, 7 U.S.C. 1981-2008r) for various FSA loans allowing FSA to include other legal entities the Secretary considers appropriate. (See CONACT sections 302(a) (7 U.S.C. 1922(a)), 304(c) (7 U.S.C. 1924(c)), 311(a) (7 U.S.C. 1941(a), and 321(a) (7 U.S.C. 1961(a).) Prior to the 2014 Farm Bill, FSA could only lend to those legal entity types specifically mentioned in the CONACT. In many situations, FSA had to require a family farm to modify its operating structure in order to qualify for an FLP loan. Otherwise, FSA determined that the loan applicant was ineligible for the FLP loans.
FSA supports farmers structuring their operations to take advantage of financial planning techniques that entity arrangements have to offer. Therefore, to implement the 2014 Farm Bill amendments to the CONACT mentioned above, FSA is amending the definition of an entity in 7 CFR 761.2 to include a type of organization, as determined by the Secretary, authorized to conduct business in the state in which it operates. There are two types of organizations that continue to be ineligible—estates and nonprofit organizations.
FSA will not include estates as an eligible entity since they are designed to be temporary in nature, and not an ongoing business entity. Nonprofit organizations also will not be considered an eligible entity since they are inconsistent with FSA's mission to establish and improve family farm operations and assist them in becoming profitable and self-sufficient so they may qualify for commercial credit.
All other existing rules regarding operating a family farm, availability of other credit, and individual liability for debt will continue to apply.
For clarity, FSA is amending the definition of “family farm” in 7 CFR 761.2 to specify that “family farm” refers to the farm business operation, not real estate. This clarification reflects FSA's long-standing interpretation and application of the term “family farm” as the business operation and “farm” as the farm real estate. Minor amendments are included in §§ 762.120, 763.5, and 764.152 to clarify that the term “family farm” refers to the business operation and the word “farm” refers to real estate.
Section 5001(a) of the 2014 Farm Bill amends section 302(a)(2) of the
To qualify for an FO loan, a loan applicant must be or become an owner and operator of a family farm. Prior to this rule, borrowers were required to own the farm real estate in the same legal manner as they operated the farm. This practice has become less common. Many family farm operations may own the farm real estate under a separate legal entity, which facilitates estate planning and the transfer of farm assets between generations. In many situations, the individuals that own the farm real estate and those operating the family farm business are identical even though multiple entities are involved. FSA is amending 7 CFR 762.120 and 764.152 to allow an applicant that is an entity and that does not own a farm (real estate) to qualify for an FO loan if the individuals who own the farm own at least 50 percent of the family farm (operating entity).
Similarly, 7 CFR 763.5 is being amended for the Land Contract Guarantee Program to reflect the eligibility of certain operating-only entities meeting the at least 50 percent ownership requirement.
These changes allow existing operations to maintain their operating structure, and allow new FLP borrowers to structure their operations in a manner that works best for them. These amendments will allow FSA to extend credit to family farm operations that may have been ineligible under existing regulations.
This rule also includes minor amendments to existing language in 7 CFR 762.120 and 7 CFR 762.152 addressing the treatment of entity applicants who are related or not related by blood or marriage. The authority for this change is in section 302(a)(1) of the CONACT (7 U.S.C. 1922). This change was needed to make the Direct Loan and Guaranteed Loan program regulations consistent.
In 7 CFR 761.2, FSA is clarifying the definition of “operator” to specify that operating-only entities may be considered owner-operators when the individuals that own the farm real estate own at least 50 percent of the family farm (operating entity).
Sections 5001, 5101, and 5201 of the 2014 Farm Bill amend FLP eligibility criteria to allow an applicant that is owned by another entity or entities (“embedded entities”), to qualify for direct or guaranteed FO, direct or guaranteed Operating Loans (OL), or Emergency Loans (EM) provided that the individuals that own the family farm own at least 75 percent of each embedded entity.
Previously, FSA required all entity applicants to be owned by individuals and not other entities. This requirement was established to help direct FLP loan funds to family farms as intended and avoid larger, more complex operations. However, over time this rule has become a barrier for many family farm operations. It has become an increasingly common business practice to separate certain segments of family farm operations for liability and financial planning reasons. Many operations are structured this way to facilitate the entry and exit of family members as operations grow and age.
Therefore, this rule adds a definition of “embedded entity” and “entity member” to 7 CFR 761.2, which will apply to all FLP loans. These changes will allow entity applicants to be eligible even if members of the entity applicant are entities themselves. “Entity member” will mean all individuals and all embedded entities, as well the individual members of the embedded entities, having an ownership interest in the assets of the entity.
In addition, FSA is modifying 7 CFR 762.120, 763.5, and 764.101 to allow multiple levels of entity ownership, provided at least 75 percent of each embedded entity is owned by individuals actively managing or operating the family farm. Adding the limitation that the individuals making up the at least 75 percent ownership must be actively managing or operating the family farm is an essential requirement, and is consistent with FSA's mission to assist family farm operations. The requirement for at least 75 percent of the owners to be active operators or managers separates out those who are simply investors when applying the 75 percent test.
Furthermore, existing rules governing the family farm and test for credit will remain in place to further ensure FLP funds are targeted to family farms otherwise unable to obtain credit. This approach meets FSA's mission to provide credit to family farm operators rather than larger farming operations with many investors.
FSA is modifying 7 CFR 762.130 and 764.402 to require debt instruments for Direct and Guaranteed loans be executed to show evidence for liability of any embedded entity, as well as the applicant and all individuals in all entities. The change is needed to protect the government's interest and ensure collectability of the debt.
FSA is modifying 7 CFR 763.7 and 764.51 to change the requirements from requiring “current personal financial statements from each member of the entity” to remove the word “personal” and to require “current financial statements from each member of the entity.” These changes are being made as a conforming change resulting from the allowance of embedded entities.
Finally, FSA is making conforming changes in 7 CFR part 765 to address the transfer or assumption to other entities. In § 765.401, the requirement to assume personal liability for the loan was required for the entity and each member—it is being changed to the entity and each entity member. In § 765.402, several conforming changes are being made to reflect entity members instead of just members (which previously was assumed to be individual members), and to expand the types of entities to include other legal business organizations as determined by the Secretary.
Section 5001(b) of the 2014 Farm Bill amends provisions for direct FO loans, allowing the Secretary additional flexibility to establish requirements for a loan applicant to meet the test that they have participated in the operation of a farm for at least 3 years.
Previously, an applicant for a direct FO had to have participated in the operations of a farm for at least 3 years. The rule was established to encourage a responsible path toward starting and growing a farming operation. However, this 3-year requirement has proven to be overly restrictive and incompatible with the current mode of entry for many beginning farmers. Section 5001(b) of the 2014 Farm Bill allows applicants to demonstrate previous experience by having participated in the business operations of a farm or ranch for not less than 3 years or having other acceptable experience for a period of time as determined by the Secretary.
Many of today's beginning farmers do not have farm backgrounds, but come to the industry through a variety of
FSA revised the direct OL regulations to implement the ML Program to better serve the unique operating needs of small family farm operations through a rule published in the
During the rulemaking process that implemented the ML Program, there were suggestions to set the ML maximum at a higher level or lower level than the proposed $35,000. FSA agreed to review the success of the ML Program and reevaluate the loan amounts periodically. The average ML obligated during the first year of implementation is $19,800. ML made at the $35,000 maximum amount account for nearly 25 percent of all direct OLs currently made since the ML Program began. Therefore, this rule is amending the maximum amount for MLs to $50,000.
In general, the Administrative Procedure Act (APA, 5 U.S.C. 553) requires that a notice of proposed rulemaking 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 emphasizes 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 significant under Executive Order 12866, “Regulatory Planning and Review,” and, therefore, OMB has reviewed this rule. The estimated costs and benefits of this rule are summarized below. The full cost benefit analysis is available on regulations.gov.
Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this rule, we invite your comments on how to make the rule easier to understand. For example:
• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?
• Does the rule contain technical language or jargon that is not clear?
• Is the material logically organized?
• Would changing the grouping or order of sections or adding headings make the rule easier to understand?
• Could we improve clarity by adding tables, lists, or diagrams?
• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?
• What else could we do to make the rule easier to understand?
Legal entities (partnerships, LLCs, etc.) comprised 13.3 percent of all farms (2012 Census of Agriculture). While the number of entities has remained relatively stable over the past 20 years, the complexity of their business structures has increased. One example is farm land ownership. Given high land prices and huge capital requirements, many farm operations lack the financial resources to purchase full ownership of farmland tracts that they operate and consequently, some have turned to alternative business structures where farmland is owned by an entity. Prior to the implementation of this rule, family farms using such strategies to acquire farmland may have found themselves ineligible for FSA credit programs. This is because the regulations prior to this rule change required the farm real estate to be owned by the same legal structure as the farm operation. This rule change will permit a family farm entity to receive an FO loan as long as the family farm entity resulting after the loan is closed is at least 50-percent owned by the owners of the farm real estate, provided all other loan eligibility requirements are satisfied.
Embedded entities—where the members of an entity are entities themselves—provide another example of increasingly complex business structures. Though not widespread, a noteworthy number of family farm operations organized as legal entities are owned partly or wholly by one or more embedded entities. The FSA Direct Attribution Reporting data base indicates that, in 2013, about 11 percent of all entities receiving payments had an embedded entity. Such entities would have been ineligible for FSA farm loans because regulations stipulated that an entity owned by one or more other entities was ineligible for an FSA farm loan. The changes implemented in this
Many new family farm entrants are neither raised on a farm nor have specific experience operating a farm business, but may have the experience or the knowledge necessary to manage a farm business. Prior to implementation of this rule, an FO applicant was required to have participated in the management of a farm business for at least 3 years. Changes implemented by this rule allow other non-traditional avenues, such as post-secondary education, farm apprenticeship, leadership or management experience while serving in any branch of the military, or extension programs to count toward the 3 year experience requirement.
In 2012, FSA implemented the microloan program to provide greater flexibility in serving the needs of small and beginning farm businesses. This rule increases the maximum microloan size (and maximum direct operating loan indebtedness for borrowers receiving such loans) from $35,000 to $50,000.
Combined, the three provisions in this rule are expected to enable FSA to benefit 2,210 farm businesses through direct and guaranteed loan programs. Changes to entity eligibility requirements are expected to enable FSA to serve an additional 660 entities. Changes in the farm business experience eligibility requirement are expected to impact 650 beginning farmers who will be able to benefit from FSA credit programs earlier than under the prior regulations. In the context of the entire direct and guaranteed loan portfolio, the additional 1,310 farm businesses impacted by revised entity eligibility and farm business experience requirements should increase demand, though the overall impacts should be marginal. And finally, changes to the ML program will only affect new or existing borrowers with total direct operating loan indebtedness between $35,000 and $50,000, and are estimated at 900 borrowers of which 100 are forecast to be new borrowers.
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 whenever an agency is required by APA or any other law to publish a proposed rule, 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 as noted above, this rulemaking is exempt from the notice and comment rulemaking requirements of APA and no other law requires that a proposed rule be published 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 the FSA regulations for compliance with NEPA (7 CFR part 1940, subpart G). All changes included in the rule are required by the 2014 Farm Bill, with some minor discretionary decisions on the implementation methods. FSA concluded that this rule will not have a significant impact on the quality of the human environment either individually or cumulatively and, therefore, is categorically excluded and not subject to environmental assessments or environmental impact statements in accordance with 7 CFR 1940.310(e)(3).
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed federal financial assistance. 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 set forth in the final rule related notice regarding 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.
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 application of 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 actions on State, local, and Tribal governments, or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rule with Federal mandates that may result in expenditures of $100 million or more in any year for State, local, or Tribal governments, in the aggregate, or
This rule is not a major rule under SBREFA (Pub. L. 104-121). Therefore, FSA is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review. Accordingly, this rule is effective on the date of publication in the
The title and number of the Federal Assistance Programs, as found in the Catalog of Federal Domestic Assistance, to which this rule applies are:
The regulatory changes in this rule do not require changes to the information collection requests currently approved by OMB control numbers of 0560-0155, 0560-0233, 0560-0236, 0560-0237, 0560-0238, and 0560-0230.
FSA is 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 other purposes.
Accounting, Loan programs—agriculture, Rural areas.
Agriculture, Banks, Banking, Credit, Loan programs—agriculture.
Agriculture, Banks, Banking, Credit, Loan programs—agriculture.
Agriculture, Credit, Loan programs—agriculture.
Agriculture, Agricultural commodities, Credit, Livestock, Loan programs—agriculture.
For the reasons discussed above, FSA amends 7 CFR chapter VII as follows:
5 U.S.C. 301 and 7 U.S.C. 1989.
The additions and revisions read as follows:
(b) * * *
(4) In the case of an entity, is primarily engaged in farming and has over 50 percent of its gross income from all sources from its farming operation based on the operation's projected cash flow for the next crop year or the next 12-month period, as mutually determined;
(5) Is not an integrated livestock, poultry, or fish processor who operates primarily and directly as a commercial business through contracts or business arrangements with farmers, except a grower under contract with an integrator or processor may be considered an established farmer, provided the farming operation is not managed by an outside full-time manager or management service and Agency loans will be based on the applicant's share of the agricultural production as specified in the contract; and
(6) Does not employ a full time farm manager.
5 U.S.C. 301 and 7 U.S.C. 1989.
The additions and revisions read as follows.
(j) * * *
(1) The individual must be the operator of not larger than a family farm and the owner of a farm after the loan is closed. Ownership of the family farm operation or the farm real estate may be held either directly in the individual's name or indirectly through interest in a legal entity.
(2) * * *
(i) An ownership entity must be authorized to own a farm in the state or states in which the farm is located. An operating entity must be authorized to operate a farm in the state or states in which the farm is located; and
(ii) If the entity members holding a majority interest are related by marriage
(iii) If the entity members holding a majority interest are not related by marriage or blood, the entity members holding a majority interest must operate the family farm and the entity members holding a majority interest or the entity must own the farm.
(3) If the entity is an operator-only entity, the individuals that own the farm (real estate) must own at least 50 percent of the family farm (operating entity).
(4) All ownership may be held either directly in the individual's name or indirectly through interest in a legal entity.
(k) * * *
(4) If the applicant has one or more embedded entities, at least 75 percent of the individual ownership interests of each embedded entity must be owned by members actively involved in managing or operating the family farm.
(l) * * *
(3) If the applicant has one or more embedded entities, at least 75 percent of the individual ownership interests of each embedded entity must be owned by members actively involved in managing or operating the family farm; and
(e) * * *
(4) The note is executed by the individual liable for the loan. For entity applicants, the promissory note will be executed to evidence the liability of the entity, any embedded entities, and the individual liability of all entity members. Individual liability can be waived by the Agency for members holding less than 10 percent ownership in the entity if the collectability of the loan will not be impaired; and
5 U.S.C. 501 and 7 U.S.C. 1989.
The revisions and additions read as follows.
(b) * * *
(2) Is the owner and operator of a family farm after the Contract is completed. Ownership of the family farm operation or the farm real estate may be held either directly in the individual's name or indirectly through interest in a legal entity. In the case of an entity buyer:
(ii) If the applicant has one or more embedded entities, at least 75 percent of the individual ownership interests of each embedded entity must be owned by members actively involved in managing or operating the family farm.
(iii) An ownership entity must be authorized to own a farm in the state or states in which the farm is located. An operating entity must be authorized to operate a farm in the state or states in which the farm is located.
(vi) If the entity is an operator-only entity, the individuals that own the farm (real estate) must own at least 50 percent of the family farm (operating entity).
(vii) All ownership may be held either directly in the individual's name or indirectly through interest in a legal entity.
(3) Must have participated in the business operations of a farm or ranch for at least 3 years out of the last 10 years prior to the date the application is submitted. Of those 3 years, 1 year can be substituted with the following experience:
(i) Postsecondary education in agriculture business, horticulture, animal science, agronomy, or other agricultural related fields,
(ii) Significant business management experience, or
(iii) Leadership or management experience while serving in any branch of the military.
5 U.S.C. 301 and 7 U.S.C. 1989.
(1)
The revisions and additions read as follows.
(c) Must be the owner-operator of the farm financed with Agency funds after the loan is closed. Ownership of the family farm operation and farm real estate may be held either directly in the individual's name or indirectly through interest in a legal entity. In the case of an entity:
(2) An ownership entity must be authorized to own a farm in the state or states in which the farm is located. An operating entity must be authorized to operate a farm in the state or states in which the farm is located.
(3) If the entity members holding majority interest are:
(i) Related by blood or marriage, at least one member of the entity must operate the family farm and at least one member of the entity or the entity must own the farm; or,
(ii) Not related by blood or marriage, the entity members holding a majority interest must operate the family farm and the entity members holding a majority interest or the entity must own the farm.
(4) If the entity is an operator only entity, the individuals that own the farm (real estate) must own at least 50 percent of the family farm (operating entity).
(d) * * * One of these three years can be substituted with the following experience:
(1) Postsecondary education in agriculture business, horticulture,
(2) Significant business management experience, or
(3) Leadership or management experience while serving in any branch of the military.
(a) * * *
(2) For entity applicants, the promissory note will be executed to evidence the liability of the entity, any embedded entities, and the individual liability of all entity members.
5 U.S.C. 301 and 7 U.S.C. 1989.
The revisions read as follows.
(e) * * *
(3) A corporation, limited liability company, cooperative, or other legal business organization, the transferee must:
(i) Have been a corporate stockholder, cooperative member or other member of a legal business organization, when the Agency made the original loan or will be an entity comprised solely of entity members who were entity members when the entity received the loan; and
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a regulated navigation area (RNA) on the navigable waters of The Gut in South Bristol, ME in support of bridge construction. This regulated navigation area allows the Coast Guard to enforce speed and wake restrictions and prohibit all vessel traffic through the regulated navigation area during bridge replacement operations, both planned and unforeseen, which could pose an imminent hazard to persons and vessels operating in the area. This rule is necessary to provide for the safety of life on the navigable waters during bridge structural repair operations.
This rule is effective without actual notice from October 8, 2014 until April 30, 2017. For the purposes of enforcement, actual notice will be used from the date the rule was signed, September 19, 2014, until October 8, 2014.
Documents mentioned in this preamble as being available in the docket, are part of docket [USCG-2014-0214]. To view documents mentioned in this preamble, go to
If you have questions on this rule, call Chief Craig D. Lapiejko, Waterways Management at Coast Guard First District, at (617) 223-8385 or email at
On January 24, 2014, Sector Northern New England received notice of a proposed replacement of The Gut Bridge in South Bristol, ME between Rutherford Island and Bristol Neck. A Bridge Permit was awarded to Maine Department of Transportation (MEDOT) on April 15, 2014 to begin in accordance with Plans dated September 24, 2013.
MEDOT held seven public meetings between June 2009 and August 2013 and mariners have expressed no significant concerns.
On November 8, 2013, Public Notice 1-132 was disseminated by the First Coast Guard District. This notice included the official plans being submitted for approval of a bridge permit and solicited comments from the public. Twenty-five comments were received. All comments were in support of burying the existing overhead electrical cables rather than allowing them to remain in place above the water. There were no comments received in opposition of the proposed construction project or potential closures to the channel.
On July 25, 2014, the Coast Guard published a notice of proposed rulemaking (NPRM) regarding the creation of this regulated navigation area. No comments were received during the public comment period of the NPRM.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Under the Ports and Waterways Safety Act, the Coast Guard has the authority to establish regulated navigation areas in defined water areas that are determined to have hazardous conditions and in which vessel traffic can be regulated in the interest of safety. See 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1.
Starting in September 2014, MEDOT is replacing the existing movable bobtail swing bridge over The Gut, which carries State Route 129 from Bristol Neck to Rutherford Island, with a movable trunnion-style lift bridge on the same alignment. The project is necessary to replace a structurally and operationally deficient bridge that has exceeded its useful life. The new bridge will measure approximately 68 feet in length and will be 41 feet wide out-to-out. All parts of the existing bridge will be removed in their entirety. Before demolition of the existing bridge commences, a temporary fixed detour bridge will be constructed on the east side of the existing bridge to provide for vehicular and pedestrian traffic throughout the project. This temporary bridge will not be movable and will have a fixed vertical clearance of 3 feet 11 inches. The existing bridge has a vertical clearance of 4 feet 2 inches when closed.
The First District Commander has determined that this bridge construction project will pose a risk to vessels transiting the waters in the vicinity of the Route 129 bridge at Bristol Neck and Rutherford Island. The purpose of this rule is to ensure the safe transit of vessels in the area, and to protect all persons, vessels, construction crews, and the marine environment during bridge construction operations on The Gut in South Bristol, ME, between Rutherford Island and Bristol Neck.
In order to mitigate the inherent risks involved in construction, it is necessary to control vessel movement through the area. Accordingly, the Coast Guard is establishing a regulated navigation area on the navigable waters of The Gut in the vicinity of South Bristol, ME. Generally, this RNA imposes two requirements on the public. Each is discussed further below.
First, this RNA imposes a speed restriction on vessels within the RNA. Heavy-lift operations are sensitive to water movement, and wake from passing vessels could pose significant risk of injury or death to construction workers. In order to minimize such unexpected or uncontrolled movement of water, the RNA will limit vessel speed and wake in the vicinity of the bridge construction zone. This will be achieved by implementing a five (5) knot speed limit and “NO WAKE” zone in the vicinity of the construction within the regulated area. While in the RNA, all vessels must proceed with caution and operate in such a manner as to produce no wake unless a higher minimum speed is necessary to maintain steering.
The second requirement imposed by this rule pertains to waterway closures. When necessary for safety, this RNA will prohibit vessel access to the regulated area. This will ensure that vessels are only permitted to transit the area when it is safe to do so. The Coast Guard may close the regulated area described in this rule to all vessel traffic during any circumstance that poses an imminent threat to waterway users operating in the area. Complete waterway closures will be made with as much advanced notice as possible. At present, the Coast Guard is aware of one 213-day closure that will begin on or after September 10, 2015 and will end on or prior to May 22, 2016. Vessels will not be permitted to transit through “The Gut” for the duration of this 213-day closure. In addition, shorter duration channel closures may be enforced between October 15, 2014 and April 30, 2015 and between October 15, 2015 and April 30, 2016 between the hours of 9:00 a.m. and 3:00 p.m. and between the hours of 10:00 p.m. and 4:00 a.m. These shorter closures will occur only as required to safely perform operations in the channel. Marine traffic will be detoured around Rutherford Island during all closure periods. Transit time around Rutherford Island is approximately 20-60 minutes for mariners.
Generally, except in the case of the aforementioned 213-day period which will require closure of the channel 24-hours per day, the Coast Guard intends to enforce the speed restrictions and the waterway closures only during limited hours of the day to minimize impacts on vessel traffic. The public will be advised of the enforcement dates and times of this RNA via Local Notice to Mariners, Broadcast Notice to Mariners, and other means described in 33 CFR 165.7. Such notices will be provided in advance of closure times.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. We expect the economic impact of this rule to be minimal because mariners are able to make a short transit (approximately 20-60 minutes) around Rutherford Island to reach any destination on the other side of The Gut.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule would not affect small entities, because all areas of the waterway are accessible and an alternate route is provided to mariners during the full closure of the bridge.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b) (2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of an RNA. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(2) In accordance with the general regulations, entry into or movement within this RNA, during periods of enforcement, is prohibited unless authorized by the First District Commander or the Captain of the Port Sector Northern New England (COTP).
(3) Persons and vessels may request permission to enter the RNA during periods of enforcement by contacting the COTP or the COTP's on-scene representative on VHF-16 or via phone at (207) 767-0303.
(4) During periods of enforcement, a speed limit of five knots will be in effect within the RNA and all vessels must proceed through the area with caution and operate in such a manner as to produce no wake unless a higher minimum speed is necessary to maintain steering.
(5) Vessels permitted to enter the RNA during periods of enforcement must comply with all directions given to them by the First District Commander, COTP, or the COTP's on-scene representative. The “on-scene representative” of the COTP is any
(6) All other relevant regulations, including but not limited to the Rules of the Road (33 CFR chapter I, subchapter E) remain in effect within the regulated area and must be strictly followed at all times.
(c)
(1) Prior to commencing or suspending enforcement of this regulation, the COTP will give notice by appropriate means to inform the affected segments of the public, to include dates and times. Such means of notification will include, but are not limited to, Broadcast Notice to Mariners, Local Notice to Mariners, and other means described in 33 CFR 165.7.
(2) Violations of this RNA may be reported to the COTP at (207) 767-0303 or on VHF-Channel 16.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective October 8, 2014. Objections and requests for hearings must be received on or before December 8, 2014, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2013-0569, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0569 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 8, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0569, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”
The EPA evaluated the available toxicity and exposure data on
Based upon that evaluation, the EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of
EPA notes that although the petitioner requested an exemption from the requirement of a tolerance for residues of
An analytical method is not required for enforcement purposes for the reasons contained in the document entitled, “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for
This final rule establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of
Environmental Protection Agency.
Final rule.
With this document, the U.S. Environmental Protection Agency (EPA, or the Agency) approves the U.S. Department of Energy's (DOE, or the Department) planned change request to implement the Run-of-Mine Panel Closure System (ROMPCS) at the Waste Isolation Pilot Plant (WIPP) and amends the WIPP Compliance Criteria to allow an EPA-approved panel closure other than the currently-required Option D design. Technical analyses demonstrate that, with the modified panel closure design, WIPP remains in compliance with the 10,000 year release limits set by the “Environmental Standards for the Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic (TRU) Radioactive Waste.” The changes do not lessen the requirements for complying with the Compliance Criteria, nor do these changes impact the technical approach that the EPA will employ when considering any future planned changes to the panel closure system. Compliance with environmental or public health regulations other than the EPA's long-term radioactive waste disposal regulations and WIPP Compliance Criteria is not addressed by today's action.
Effective October 8, 2014.
Ray Lee or Jonathan Walsh, Radiation Protection Division, Mail Code 6608J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington, DC, 20460; telephone number: 202-343-9463 or 202-343-9238; fax number: 202-343-2305; email address:
Several acronyms and terms used to describe components of the WIPP disposal system and performance assessment computer models are included in this preamble. To ease the reading of this preamble and for reference purposes, the following terms are defined here:
The WIPP is a disposal system for defense-related transuranic (TRU) radioactive waste. Developed by the DOE, the WIPP is located near Carlsbad in southeastern New Mexico. At the WIPP, radioactive waste is disposed of 2,150 feet underground in an ancient formation of salt which will eventually “creep” and encapsulate the waste. The WIPP has a total capacity of 6.2 million cubic feet of waste.
Congress authorized the development and construction of the WIPP in 1980 “for the express purpose of providing a research and development facility to demonstrate the safe disposal of radioactive wastes resulting from the defense activities and programs of the United States.”
The WIPP Land Withdrawal Act (LWA), initially passed by Congress in 1992 and amended in 1996, provides the EPA authority to oversee and regulate the WIPP for compliance with EPA's long-term radioactive waste disposal regulations. In 1996, the Agency issued the WIPP Compliance Criteria, which are found at 40 CFR part 194.
EPA's certification of WIPP's performance was based upon the repository design the Department submitted in Chapter 3 of the CCA. The underground waste disposal region at WIPP is divided into panels. A panel is a group of rooms mined into the salt, connected by tunnels called drifts. When all of the rooms of a panel are filled with waste, the DOE intends to seal the drifts with engineered structures called panel closures.
In the CCA, the Department presented four options for the design of the panel closure system, but did not specify which would be constructed at the WIPP facility. The Agency based its certification decision on the DOE's use of the most robust design, referred to in the CCA as “Option D”. Condition 1, requiring DOE to Implement the Option D panel closure system, was appended to 40 CFR part 194 as part of the certification decision. (63 FR 27354, May 18, 1998) The Option D design called for the drift to be sealed using a concrete block wall and a poured concrete monolith.
The Department submitted a PCR to the EPA on September 28, 2011, proposing to alter the panel closure design. Citing experience and data gained since the CCA, the DOE's PCR states that the Option D panel closure would be extremely difficult and costly to install, and that the highly engineered design is unnecessary for either worker safety or environmental protection during the operational period. The DOE instead proposed a new panel closure design, the Run-of-Mine Salt Panel Closure System (ROMPCS), which consists of mined salt emplaced between steel bulkheads.
The EPA completed a technical review of the DOE's PCR and supporting documentation. The goal of the Agency's technical review process was to determine whether, with the new design, the WIPP adequately demonstrates compliance with the requirements of 40 CFR part 194 and the release limits of 40 CFR part 191, Subparts B and C. This process is fully documented in the TSD, “Review of the DOE's Planned Change Request to Modify the WIPP Panel Closure System,” (EPA-HQ-OAR-2013-0684-0002) and discussed in the notice of proposed rulemaking (78 FR 72612, Dec. 3, 2013). The Agency concluded that the WIPP will remain in compliance with its release limits with the ROMPCS design. The Agency therefore proposed to approve the DOE's PCR to implement the redesigned panel closure at the WIPP, and to modify 40 CFR part 194 Appendix A, Condition 1 to allow panel closure designs other than Option D, as long as DOE has demonstrated WIPP's continued compliance with the long-term release standards.
The EPA's Compliance Criteria at 40 CFR part 194 does not require a panel closure for the purpose of long-term compliance with release limits for radionuclides. The purpose of 40 CFR part 194 is to demonstrate compliance with the disposal regulations at 40 CFR part 191 for containment of
The Option D panel closure design consists of a 12-foot thick “explosion-isolation wall” constructed of solid concrete blocks filling the drift on the waste disposal side, a short section of open drift called an “isolation zone” and a monolithic concrete barrier on the side of the open drift. Fractured rock in the immediate vicinity of the drift—called the disturbed rock zone, or DRZ—would be removed, and the resulting void space filled by the concrete monolith. In its current PCR, the DOE states that “large scale testing has demonstrated that using SMC [Salado Mass Concrete] cannot meet the design and performance requirements for the panel closures as specified in the CCA.” Even if the Option D monolith could be constructed as planned, the Agency acknowledges that it would be installed at significant cost to the Department. Additional occupational hazards would be incurred by moving and pouring large amounts of concrete in the underground and disposal operations would be significantly disrupted as well.
The DOE's new panel closure design, the ROMPCS, consists primarily of run-of-mine (ROM) salt—impure halite that has been mined in the course of normal repository operations and not subjected to additional processing or grading. The ROMPCS design consists of two standard steel ventilation bulkheads with a minimum of 100 feet of run-of-mine (ROM) salt between them, filling the drift from floor to ceiling. In Panels 1, 2 and 5, where explosion walls have already been constructed, salt will be placed directly against the explosion wall and a standard steel ventilation bulkhead placed on the outer end of the panel closure. The DOE has stated that the ROMPCS will provide adequate protection during the operational period. Upon initial emplacement, the run-of-mine salt will exhibit the properties of a loosely consolidated or unconsolidated material. Over time, as the open areas of the repository close due to salt creep, the panel closures will consolidate and eventually heal to a state resembling intact salt.
As in the past, the Agency's consideration of the panel closure system focused on its representation in repository performance assessment, so that the EPA can ultimately certify the WIPP's ability to meet long-term performance standards. In support of its panel closure PCR, the DOE initially submitted a performance assessment calculation called the Panel Closure Redesign and Repository Reconfiguration (PC3R) PA, which incorporated multiple planned changes. The Agency determined that to approve the PCR, it was necessary to isolate the impacts, if any, of the change in panel closure design. In response, the DOE prepared the PCS-2012 PA, with the explicit goal of changing only those aspects of the current baseline PA that are directly related to the change in the panel closure design. Thus, results of the PCS-2012 PA may be directly compared to results of the current Performance Assessment Baseline Calculation (PABC-09) to see the impact of changes in the panel closure on modeled releases from the facility. The EPA undertook a review of the PCS-2012 PA. The majority of the technical effort expended by the Agency was spent determining how the changes in the panel closures should be represented in the performance assessment models. The entire review process is fully documented in the Agency's TSD, “Review of DOE's Planned Change Request to Modify the WIPP Panel Closure System.” (EPA-HQ-OAR-2013-0684-0002) Based on its review and on the results of performance assessment, the Agency concludes that the WIPP will continue to comply with the EPA's disposal standards with the ROMPCS. Therefore, the Agency proposed to approve the DOE's PCR and allow the implementation of the ROMPCS design at the WIPP.
The Option D panel closure is currently required by 40 CFR part 194, Appendix A, Condition 1. Therefore, accepting a redesigned panel closure requires modification of Condition 1. Condition 1 was appended to 40 CFR part 194 because the DOE presented multiple panel closure options, and the EPA originally certified the WIPP's performance based on the expected properties of the Option D panel closure. It is the only engineered aspect of the repository design that is explicitly required by rule. At this time, DOE has proposed a single panel closure that it intends to implement in all waste panels at WIPP. Furthermore, at the time of the CCA, limited performance assessment results were available to indicate the impact of the panel closure design on repository performance. Due to the evolution of the WIPP PA since the CCA, the DOE and the EPA have gained a greater understanding of panel closures' influence on PA results. Changes to the representation of the panel closure in the performance assessment models have resulted in small differences in the results, indicating that the panel closure design does not disproportionately impact the long-term performance of WIPP compared to other design features of the repository. For these reasons, the Agency does not believe that it is necessary or appropriate for the specific design of the panel closure to remain as a condition of certification. Rather, panel closures should be treated in a similar manner as any other engineered feature of the repository.
This change does not grant the DOE the ability to alter the panel closure design at will. As with any engineered component of the disposal system, the Agency must be informed of any departure from the current, approved design as required by § 194.4(b)(3)(i). The EPA would expect such a request to be supported by complete technical documentation, including any updated information concerning “the geology, hydrology, hydrogeology, and geochemistry of the WIPP disposal system” and “WIPP materials of construction, standards applied to design and construction,” as required by § 194.14, Content of certification applications. The Agency would use this information to determine whether or not the WIPP remains in compliance with the disposal standards. As with any other planned change, based on the potential impact to the WIPP's compliance, the EPA would determine whether the change “departs significantly from the most recent
The EPA held informal public meetings in Carlsbad, New Mexico, on December 5, 2012, and Santa Fe, New Mexico, on December 6, 2012, to provide the public with background on the DOE's panel closure system planned change request, and to give the public the opportunity to raise any technical issues that the Agency should consider in its decision. After publishing the notice of proposed rulemaking, the EPA held public meetings in Carlsbad and Albuquerque on January 22 and 23, 2014. Summaries of these meetings have been included in the docket.
In addition to comments delivered verbally, the Agency received seven sets of written comments. The majority of these comments expressed support of DOE's planned change, and of EPA's proposed approval. No comments of a technical nature were submitted, and therefore no further analysis needed to be performed in response to comments. One set of comments raised valid questions about further changes to the panel closure design. In response, EPA made a minor clarification to the rule language.
Several commenters expressed appreciation for the ability to voice their comments. The EPA feels that public participation has strengthened the WIPP regulatory program, and remains committed to involve the public in its decision process.
Many commenters stated that the ROMPCS design will meet regulatory requirements, while reducing operational costs and occupational hazards. The EPA focused on WIPP's ability to meet regulatory release standards, but has acknowledged DOE's stated operational motivations for revising the panel closure design.
Several commenters expressed confidence in the performance assessment calculations that the EPA relied on to reach its decision. Others pointed out that salt is an appropriate material for a panel closure because salt is being relied upon to encapsulate waste in every direction except the panel closure. The Agency agrees with the use of a material that is physically and chemically compatible with the repository environment, and has relied on a body of data indicating that in time, the salt panel closure will return to a physical state similar to the halite that surrounds it.
Many commenters expressed confidence that, based upon monitoring data taken in the underground, the ROMPCS will be adequate to protect workers and the public against hydrogen, methane, and VOCs during the operational life of the repository. As stated in the Notice of Proposed Rulemaking, it is the responsibility of the New Mexico Environment Department to evaluate the ability of the ROMPCS to perform these functions, and DOE must demonstrate the adequacy of the panel closure design to the NMED through a parallel process. One commenter expressed concern that EPA's approval of DOE's PCR will unduly influence the NMED permit modification process, and suggested the Agency defer its decision. The Agency disagrees with this viewpoint. Whenever it proposes any change to the repository system, it is the responsibility of DOE to demonstrate compliance to each regulator independently. NMED must determine whether the design adequately protects against VOCs, regardless of EPA's determination of WIPP's compliance with the long-term disposal standards.
The same commenter pointed out that the proposed rule language stated that “any” change to the design must be submitted to EPA as a planned change request, and expressed concern that if the change process imposed by EPA is overly burdensome, DOE loses flexibility in meeting NMED requirements. The EPA designed the rule to allow flexibility in approaching future changes to the design. By eliminating the absolute necessity of a rulemaking, the Agency will be able to employ a graded approach when considering any future changes to the panel closure design requested by DOE. Because it is the responsibility of the EPA to determine that the compliance model reasonably reflects the actual design of the repository, DOE must inform EPA of any change to the panel closure design described in DOE's current PCR. Depending on the scope of the changes, however, DOE may not need to provide the level of documentation typically included in a planned change request. As an example, the Agency has determined that steel ventilation bulkheads do not impact long-term performance, and need not be represented in the compliance models. It is unlikely that any additional analysis would be required to approve a change to the configuration of ventilation bulkheads, because the compliance model used to approve the design remains valid. The language of the proposed rule seemed to require a PCR for any proposed change to the panel closure design. The language of the rule modification has been altered so that DOE's obligation is to inform EPA of any proposed change. The Agency will determine the level of documentation necessary to evaluate the request.
On February 14, 2014, an incident took place in the underground at WIPP, resulting in the release of a small amount of radioactive material to the environment and a disruption of operations at the facility. EPA has been closely involved in the investigation of the incident and has determined that it does not change the basis of this panel closure decision. The incident took place in the active waste panel. Panel closures are installed only after waste emplacement in a panel is complete, and therefore would not have impacted the event. More importantly, as described above, EPA's approval of the proposed ROMPCS is based upon WIPP's compliance with the long-term disposal standards from facility closure to 10,000 years after closure. Although EPA regulations limit radiation dose to the public from facility operations, there is no indication that DOE has violated those limits, and EPA does not prescribe the technical means that DOE must use to meet those limits. Lastly, as described above, the revised condition allows EPA to apply a graded approach when considering any further modifications to the panel closure design. It is possible that adjustments will be made to the design, as a result of either NMED's evaluation of the panel closures' ability to protect workers and the public from hazardous waste during facility operation, or as part of DOE's plan to reopen the repository. This rule change both approves a design that can be installed quickly if it is needed, and gives EPA the ability to efficiently evaluate any future changes to that design based on their impacts to long-term repository performance.
Under Executive Order 12866, (58 FR 51735; October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) create
The Regulatory Flexibility Act (“RFA”) generally requires any federal agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless they certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises and small governmental jurisdictions. This rule sets forth requirements which apply only to federal agencies. Therefore, I certify this action will not have a significant economic impact on a substantial number of small entities.
This action does not impose an information collection burden under the provisions of the Paper Reduction Act, 44 U.S.C. 3501
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local and tribal governments and the private sector. Pursuant to Title II of the UMRA, we have determined that this regulatory action is not subject to the requirements of sections 202 and 205, because this action does not contain any “federal mandates” for state, local or tribal governments or for the private sector. This rule applies only to federal agencies.
Pursuant to Executive Order 12898 (59 FR 7629; February 16, 1994), entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” the Agency has considered environmental justice related issues with regard to the potential impacts of this action on the environmental and health conditions in low-income, minority and Native-American communities. We have complied with this mandate. However, the requirements specifically set forth by the Congress in the Waste Isolation Pilot Plant Land Withdrawal Act (Pub. L. 102-579), which prescribes the EPA's role at the WIPP, did not provide authority for the Agency to examine impacts in the communities in which wastes are produced, stored and transported, and Congress did not delegate to the EPA the authority to consider the issue of alternative locations for the WIPP. During the development of the existing provisions in 40 CFR part 194, the EPA involved minority and low income populations early in the rulemaking process. In 1993, the EPA representatives met with New Mexico residents and government officials to identify the key issues that concern them, the types of information they wanted from the Agency and the best ways to communicate with different sectors of the New Mexico public. The feedback provided by this group of citizens formed the basis for the EPA's WIPP communications and consultation plan. To help citizens (including a significant Hispanic population in Carlsbad and the nearby Mescalero Indian Reservation) stay abreast of the EPA's WIPP-related activities, the Agency developed many informational products and services. The EPA translated several documents regarding WIPP into Spanish, including educational materials and fact sheets describing the EPA's WIPP oversight role and the radioactive waste disposal standards. The Agency established a toll-free WIPP Information Line, recorded in both English and Spanish, providing the latest information on upcoming public meetings, publications and other WIPP-related activities. The EPA also developed a mailing list, which includes many low-income, minority and Native-American groups, to systematically provide interested parties with copies of EPA's public information documents and other materials. Even after the final rule, in 1998, the EPA has continued to implement outreach services to all WIPP communities based on the needs determined during the certification. The Agency has established a WIPP-NEWS email listserv to facilitate communications with interested stakeholders not only in New Mexico and surrounding areas, but nationally and internationally as well. The EPA's WIPP Web site is also continuously updated with relevant news and updates on current and future WIPP activities.
Section 12 of the National Technology Transfer & Advancement Act of 1995 is intended to avoid “re-inventing the wheel.” It aims to reduce costs to the private and public sectors by requiring federal agencies to draw upon any existing, suitable technical standards used in commerce or industry. To comply with the Act, the EPA must consider and use “voluntary consensus standards,” if available and applicable, when implementing policies and programs, unless doing so would be “inconsistent with applicable law or otherwise impractical.” We have determined that this regulatory action is not subject to the requirements of National Technology Transfer & Advancement Act of 1995 as this rulemaking is not setting any technical standards.
This rule is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885; April 23, 1997) because it does not involve decisions on environmental health risks or safety risks that may disproportionately affect children.
Executive Order 13132, entitled “Federalism” (64 FR 43255; August 10, 1999), requires the 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 rule 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 revises a specific condition of the Compliance Criteria in 40 CFR part 194. These criteria are applicable only to the DOE (operator) and the EPA
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249; November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. This action revises a condition of the Compliance Criteria in 40 CFR part 194. The Compliance Criteria are applicable only to Federal agencies. Thus, Executive Order 13175 does not apply to this rule.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355; May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Environmental protection, Nuclear materials, Nuclear power plants and reactors, Radiation protection, Waste treatment and disposal.
For the reasons set out in the preamble, 40 CFR part 194 is amended as follows:
Pub. L. 102-579, 106 Stat. 4777, as amended by Public Law 104-201, 110 Stat. 2422; Reorganization Plan No. 3 of 1970, 35 FR 15623, Oct. 6, 1970, 5 U.S.C. app. 1; Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011-2296 and 10101-10270.
Environmental Protection Agency.
Immediate final rule.
Florida has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this immediate final rule. In the “Proposed Rules” section of today's
This final authorization will become effective on December 8, 2014 unless EPA receives adverse written comment by November 7, 2014. If EPA receives such comment, EPA will publish a timely withdrawal of this immediate final rule in the
Submit your comments, identified by Docket ID No. EPA-R04-RCRA-2012-0179, by one of the following methods:
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You may view and copy Florida's applications and associated publicly available materials from 8:00 a.m. to 4:00 p.m. at the following locations: EPA, Region 4, RCRA Division, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960; telephone number: (404) 562-8466; and the Florida Department of Environmental Protection, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; telephone number: (850) 245-8713. Interested persons wanting to examine these documents should make an appointment with the office at least a week in advance.
Anita K. Shipley, Permits and State Programs Section, RCRA Programs and Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960; telephone number: (404) 562-8466; fax number: (404) 562-9964; email address:
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized States at the same time that they take effect in unauthorized States. Thus, EPA will implement those requirements and prohibitions in Florida, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.
On August 10, 2009, July 1, 2010, and August 30, 2012, Florida submitted final complete program revision applications, seeking authorization of changes to its hazardous waste program that correspond to certain Federal rules promulgated between July 1, 2007 and June 30, 2009, and July 1, 2010 and June 30, 2011 (also known as RCRA Clusters XVIII, XIX, and XXI). EPA concludes that Florida's applications to revise its authorized program meet all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR Part 271. Therefore, EPA grants Florida final authorization to operate its hazardous waste program with the changes described in the authorization applications, and as outlined below in Section G of this document.
Florida has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program applications, subject to the limitations of HSWA, as discussed above.
The effect of this decision is that the changes described in Florida's authorization applications will become part of the authorized State hazardous waste program, and will therefore be federally enforceable. Florida will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA retains its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:
• Conduct inspections, and require monitoring, tests, analyses, or reports;
• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.
This action does not impose additional requirements on the regulated community because the regulations for which Florida is being authorized by today's action are already effective, and enforceable requirements under State law, and are not changed by today's action.
Along with this immediate final rule, EPA is publishing a separate document in the “Proposed Rules” section of today's
If EPA receives comments that oppose this authorization, EPA will withdraw today's immediate final rule by publishing a document in the
If EPA receives comments that oppose only the authorization of a particular change to the State hazardous waste program, EPA will withdraw that part of today's immediate final rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The
Florida initially received Final authorization on January 29, 1985, effective February 12, 1985 (50 FR 3908), to implement a RCRA hazardous waste management program. EPA granted authorization for changes to Florida's program on December 1, 1987, effective March 3, 1988 (52 FR 45634); December 16, 1988, effective January 3, 1989 (53 FR 50529); December 14, 1990, effective February 12, 1991 (55 FR 51416); February 5, 1992, effective April 6, 1992 (57 FR 4371); February 7, 1992, effective April 7, 1992 (57 FR 4738); May 20, 1992, effective July 20, 1992 (57 FR 21351); November 9, 1993, effective January 10, 1994 (58 FR 59367); July 11, 1994, effective September 9, 1994 (59 FR 35266); April 16, 1994, effective October 17, 1994 (59 FR 41979); October 26, 1994, effective December 27, 1994 (59 FR 53753); April 1, 1997, effective June 2, 1997 (62 FR 15407); September 18, 2000, effective November 18, 2000 (65 FR 56256); August 23, 2001, effective October 22, 2001 (66 FR 44307); August 20, 2002, effective October 21, 2002 (67 FR 53886 and 67 FR 53889); October 14, 2004, effective December 13, 2004 (69 FR 60964); August 10, 2007, effective October 9, 2007 (72 FR 44973); and February 7, 2011, effective April 8, 2011 (76 FR 6564). The authorized Florida program, through RCRA Cluster IV, was incorporated by reference into the CFR on January 20, 1998, effective March 23, 1998 (63 FR 2896).
On August 10, 2009, July 1, 2010, and August 30, 2012, Florida submitted final complete program revision applications seeking authorization of its changes in accordance with 40 CFR 271.21. EPA now makes an immediate final decision, subject to receipt of written comments that oppose this action, that Florida's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, EPA grants Florida final authorization for the following program changes:
There are no State requirements in the authorized program revisions listed above that are considered to be more stringent or broader in scope than the Federal requirements. However, Florida has made several State-initiated changes to its regulations that the EPA considers to be beyond the scope of the Federal program. These broader-in-scope requirements include the following:
• Form 8700-12F, to the extent that it requires notification for used oil filter transporters, transfer facilities, processors, and end users.
• F.A.C. 62-730.171(3)(a)(1), which requires that a transfer facility's initial notification include a certification that the proposed location of the transfer facility satisfies the criteria of F.S. 403.7211(2).
• F.A.C. 62-730.182, which adds criteria to determine whether changes at a hazardous waste facility constitute a “substantial modification” for purposes of the location standards of F.S. 403.7211.
Broader-in-scope requirements are not part of the State's authorized program and EPA cannot enforce them. Although these requirements must be complied with in accordance with State law, they are not RCRA requirements.
With this immediate final rule, EPA is also correcting an error that appeared in the February 7, 2011,
Florida will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer
Florida is not authorized to carry out its hazardous waste program in Indian Country within the State, which includes the Seminole Tribe of Florida and the Miccosukee Tribe of Indians of Florida. EPA will continue to implement and administer the RCRA program in these lands.
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA is not codifying the authorization of Florida's changes at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart K, for the authorization of Florida's program changes at a later date.
The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action 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 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 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. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) 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 provisions of 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 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 document 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 in the
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006, and 7004(b), of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Environmental Protection Agency (EPA).
Final rule; technical correction.
EPA issued final significant new use rules (SNURs) in the
This technical correction is effective November 3, 2014.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2012-0727, is available at
The Agency included in the September 2, 2014 final rule a list of those who may be potentially affected by this action.
EPA issued a final rule in the
Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) 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 final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment. In Unit V. of the September 2, 2014 final rule containing EPA's response to comments, EPA stated in the response to comment 10 that it would include a
No. For a detailed discussion concerning the statutory and executive order review, refer to Unit X. of the September 2, 2014 final rule.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR part 721 is amended as follows:
15 U.S.C. 2604, 2607, and 2625(c).
(a) * * *
(2) * * *
(i)
(a) * * *
(1) The chemical substance identified generically as hexanedioic acid, polymer with .alpha.-hydro-.omega.-hydroxypoly[oxy(methyl-1,2-ethanediyl)],1,1′-methylenebis[4-isocyanatobenzene], dihydroxydialkyl ether and dialkanol ether (PMN P-11-311) is subject to reporting under this section for the significant new uses
Bureau of Consumer Financial Protection.
Proposed rule with request for public comment.
The Bureau of Consumer Financial Protection (Bureau or CFPB) proposes to amend the regulation defining larger participants of certain consumer financial product and service markets by adding a new section to define larger participants of a market for automobile financing. The new section would define a market that includes grants of credit for the purchase of an automobile, refinancings of such credit obligations, and purchases or acquisitions of such credit obligations (including refinancings). It would also include automobile leases and purchases or acquisitions of such automobile lease agreements. The Bureau is proposing this rule pursuant to its authority, under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), to supervise certain nonbank covered persons for compliance with Federal consumer financial law and for other purposes. The Bureau has the authority to supervise nonbank covered persons of all sizes in the residential mortgage, private education lending, and payday lending markets. In addition, the Bureau has the authority to supervise nonbank “larger participant[s]” of markets for other consumer financial products or services, as the Bureau defines by rule. The proposal (Proposed Rule) would identify a market for automobile financing and define as larger participants of this market certain nonbank covered persons that would be subject to the Bureau's supervisory authority. The Proposed Rule would also define certain automobile leases as a “financial product or service” under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act. Finally, the Proposed Rule would make certain technical corrections to existing larger-participant rules.
Comments must be received on or before December 8, 2014.
You may submit comments, identified by Docket No. CFPB-2014-0024 or RIN 3170-AA46, by any of the following methods:
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All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Comments will not be edited to remove any identifying or contact information.
Jolina Cuaresma, Counsel, Andrea Pruitt Edmonds and Amanda Quester, Senior Counsels, Office of Regulations, at (202) 435-7700.
Section 1024 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), codified at 12 U.S.C. 5514,
This Proposed Rule, if adopted, would (1) define certain nonbank covered persons as larger participants of a market for automobile financing that would include grants of credit for the purchase of an automobile, refinancings of such credit obligations and any subsequent refinancings thereof, purchases or acquisitions of such credit obligations (including refinancings), automobile leases, and purchases or
This Proposed Rule would be the fifth in a series of rulemakings to define larger participants of markets for other consumer financial products or services for purposes of section 1024(a)(1)(B) of the Dodd-Frank Act.
The Bureau is authorized to supervise nonbank covered persons subject to section 1024 of the Dodd-Frank Act for purposes of: (1) Assessing compliance with Federal consumer financial law; (2) obtaining information about such persons' activities and compliance systems or procedures; and (3) detecting and assessing risks to consumers and consumer financial markets.
The Bureau prioritizes supervisory activity among nonbank covered persons on the basis of risk, taking into account, among other factors, the size of each entity, the volume of its transactions involving consumer financial products or services, the size and risk presented by the market in which it is a participant, the extent of relevant State oversight, and any field and market information that the Bureau has on the entity. Such field and market information might include, for example, information from complaints and any other information the Bureau has about risks to consumers posed by a particular entity.
The specifics of how an examination takes place vary by market and entity. However, the examination process generally proceeds as follows. Bureau examiners contact the entity for an initial conference with management and often request records and other information. Bureau examiners will ordinarily also review the components of the supervised entity's compliance management system. Based on these discussions and a preliminary review of the information received, examiners determine the scope of an on-site examination and then coordinate with the entity to initiate the on-site portion of the examination. While on-site, examiners spend a period of time discussing with management the entity's policies, processes, and procedures; reviewing documents and records; testing transactions and accounts for compliance; and evaluating the entity's compliance management system. Examinations may involve issuing confidential examination reports, supervisory letters, and compliance ratings. In addition to the process described above, the Bureau may also conduct off-site examinations.
The Bureau has published a general examination manual describing the Bureau's supervisory approach and procedures.
This Proposed Rule would establish a category of nonbank covered persons that is subject to the Bureau's supervisory authority under section 1024 by defining “larger participants” of a market for automobile financing.
The Bureau proposes to add § 1001.1 and § 1001.2(a) in new part 1001 to title 12 of the Code of Federal Regulations. Proposed § 1001.1 would state the authority and purpose of part 1001, which is to implement the Bureau's authority, granted by section 1002(15)(A)(xi) of the Dodd-Frank Act, to define the term “financial product or service” to include financial products or services in addition to those defined in sections 1002(15)(A)(i)-(x). Proposed § 1001.2(a) would define the term “financial product or service” under that same authority to include certain automobile leases.
The Bureau is authorized to define larger participants in markets for consumer financial products or services. Subpart A of the Bureau's existing larger-participant rule, 12 CFR part 1090, prescribes various procedures, definitions, standards, and protocols that apply with respect to all markets in which the Bureau defines larger participants.
The Bureau includes relevant market descriptions and larger-participant tests, as it develops them, in subpart B.
The Proposed Rule would define a market for automobile financing that
The Bureau is not proposing to include automobile title lending or the securitization of automobile loans and leases within the meaning of the term “automobile financing” in this Proposed Rule, although as discussed below the Bureau is seeking comment on this approach. Moreover, the Proposed Rule excludes certain auto dealers.
The Proposed Rule would define “automobile” to mean any self-propelled vehicle primarily used for personal, family, or household purposes for on-road transportation.
The Proposed Rule would set forth a test to determine whether a nonbank covered person is a larger participant of the automobile financing market. A nonbank covered person would be a larger participant if it has at least 10,000 aggregate annual originations. As prescribed by existing § 1090.102, any nonbank covered person that qualifies as a larger participant would remain a larger participant until two years after the first day of the tax year in which the person last met the applicable test.
Pursuant to existing § 1090.103, a person would be able to dispute whether it qualifies as a larger participant in the automobile financing market. The Bureau would notify an entity when the Bureau intended to undertake supervisory activity; the entity would then have an opportunity to submit documentary evidence and written arguments in support of its claim that it was not a larger participant.
As noted above, the Bureau is proposing to include automobile leases in the criterion it would use to define larger participants in the market for automobile financing. Certain consumer leases are identified as a financial product or service under section 1002(15)(A)(ii) and, thus, the Bureau would have authority over such leases and those leases would count toward the threshold for the larger-participant test in this Proposed Rule. While most consumer leases fall within section 1002(15)(A)(ii), some likely will not because section 1002(15)(A)(ii) requires that leases be, among other things, the functional equivalent of purchase finance arrangements.
Finally, the Proposed Rule would amend the Bureau's existing larger-participant rule. Specifically, the Bureau is proposing to make a technical correction to existing § 1090.101, by inserting the word “financial” before the term “product or service” in the definition of “nonbank covered person.” The Proposed Rule would also amend paragraph (iii)(D) of the definition of “annual receipts” in existing § 1090.104(a) and § 1090.105(a), which governs how the affiliate aggregation rules apply to formerly affiliated companies for purposes of the consumer reporting and consumer debt collection larger-participant rules. The proposal would clarify that if a company ceases to be an affiliated company of a nonbank covered person during the relevant measurement period, its annual receipts must be aggregated for the entire period of measurement.
The Bureau is issuing this Proposed Rule pursuant to its authority under the Dodd-Frank Act: (1) Sections 1024(a)(1)(B) and (a)(2), which authorize the Bureau to supervise nonbanks that are larger participants of markets for consumer financial products or services, as defined by rule;
The Administrative Procedure Act generally requires that rules be published not less than 30 days before their effective dates.
Proposed § 1001.1 states the authority and purpose for new part 1001. It explains that under section 1002(15)(A)(xi) of the Dodd-Frank Act, the Bureau is authorized to define certain financial products or services for purposes of title X of the Dodd-Frank Act, in addition to those defined in sections 1002(15)(A)(i)-(x). As proposed § 1001.1 explains, the purpose of part 1001 is to implement that authority.
Proposed § 1001.2(a) would define the term “financial product or service” under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act, to include certain automobile leases that (1) meet the requirements of section 108 of the Competitive Equality Banking Act of 1987 (CEBA),
Depository institutions have long engaged in auto leasing activities, and nonbank entities are a major player in the leasing sector.
The Bureau is proposing to include automobile leasing in the consumer financial product or service market for automobile financing for purposes of a rule defining larger participants in that market. Section 1002(15)(A)(ii) defines the term “financial product or service” to include certain leases that, among other things, are the functional equivalent of purchase finance arrangements.
Section 1002(15)(A)(ii) defines the term “financial product or service,” in relevant part, as: “extending or brokering leases of personal . . . property that are the functional equivalent of purchase finance arrangements, if—(I) the lease is on a non-operating basis; [and] (II) the initial term of the lease is at least 90 days.”
The Bureau believes the phrase “functional equivalent of purchase finance arrangements”—which is not defined in the Dodd-Frank Act
For consumers, leasing a vehicle requires an application process and an ongoing contractual obligation that are both financial in nature and similar to entering into a financial arrangement to purchase a vehicle. Like a consumer seeking to qualify for a loan to purchase a vehicle, a consumer seeking to lease a vehicle must provide basic financial information such as income and credit history.
Auto leasing also shares many other features with auto lending. A consumer must demonstrate an ability to pay the monthly payments in order to qualify for a lease and a consumer's creditworthiness impacts the terms of the lease. An auto finance company may furnish information about a lessee, such as payment history, to credit bureaus in the same manner that the company does for a borrower. Also, similar to a consumer who finances an auto with a loan, a consumer who leases an auto bears the responsibility for the vehicle's upkeep and must maintain, repair, and service the vehicle during the lease term.
Moreover, autos are important to the financial well-being of consumers regardless of whether the consumer obtains the use of a vehicle through a lease or a loan. Consumers rely on autos for their transportation needs, including to and from the workplace. From a consumer's standpoint, whether a vehicle is leased or financed through a loan, any consumer financial law violation that impedes access to a vehicle or otherwise creates problems related to the loan or leasing arrangement can have a critical impact on the consumer. Thus, as interpreted by the Bureau, most automobile leases are the functional equivalent of purchase finance arrangements.
The Bureau believes that typical auto leases also meet the remaining two requirements of section 1002(15)(A)(ii) of the Dodd-Frank Act. First, auto leases are generally “non-operating.” Consistent with the definition in Regulation Y, which governs bank holding companies and changes in bank control, the Bureau interprets “non-operating” to mean that the lease provider is not, directly or indirectly, engaged in operating, servicing, maintaining, or repairing the leased property during the lease term.
However, as discussed above, the requirement that category (ii) leases be the functional equivalent of purchase finance arrangements means that coverage of leases under section 1002(15)(A)(ii) will necessarily depend on a number of factors and circumstances that may vary between particular leases and institutions. Given the potential variance in the terms of lease agreements, the Bureau is concerned that not all automobile leases that materially impact consumers will necessarily qualify for coverage under section 1002(15)(A)(ii) and that market participants may have a difficult time discerning which leases meet the definition and which do not. Such a result would make the automobile financing larger-participant rule difficult to administer with respect to leasing and would not provide optimal protection to consumers. To further the mandate of protecting consumers and for ease of administering the automobile financing larger-participant rule, the Bureau is proposing to exercise its authority under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act to define certain automobile leases not covered under section 1002(15)(A)(ii) as financial products or services within the meaning of section 1002(15)(A) of the Dodd-Frank Act.
Under section 1002(15)(A)(xi)(II), for purposes of title X of the Dodd-Frank Act, the Bureau may define as a covered financial product or service, by regulation: “such other financial product or service . . . if the Bureau finds that such financial product or service is— . . . (II) permissible for a bank or for a financial holding company to offer or to provide under any provision of a Federal law or regulation applicable to a bank or a financial holding company, and has, or will have, a material impact on consumers.” In this proposal, the Bureau would define the term “financial product or service” under section 1002(15)(A)(xi)(II) to include certain automobile leases that: (1) meet the requirements of section 108 of CEBA, as implemented by 12 CFR part 23, and therefore are permissible for banks to offer or provide; and (2) are not the functional equivalent of purchase finance arrangements under section 1002(15)(A)(ii) of the Dodd-Frank Act.
Banks and financial holding companies are broadly authorized to engage in automobile leasing. With respect to national banks, CEBA amended the National Bank Act, to add, among other things, 12 U.S.C. 24(Tenth), which authorizes national banks to “invest in tangible personal property, including, without limitation, vehicles, manufactured homes, machinery, equipment, or furniture, for lease financing transactions on a net lease basis.”
(1) Servicing, repair, or maintenance of the leased property during the lease term;
(2) Parts or accessories for the leased property;
(3) Loan of replacement or substitute property while the leased property is being serviced;
(4) Payment of insurance for the lessee, except where the lessee has failed in its contractual obligation to purchase or maintain required insurance; or
(5) Renewal of any license or registration for the property unless renewal by the bank is necessary to protect its interest as owner or financier of the property.”
12 CFR 23.2(f).
Additionally, the Bureau believes that, whether or not a particular automobile lease qualifies as a category (ii) lease, all consumer automobile leasing, including leasing covered by the proposed definition, has a material impact on consumers. As discussed below, access to a vehicle is critical for consumers. Auto leasing is a significant financial obligation, and consumers are increasingly turning to leasing as a means to obtain a vehicle. The impact of automobile leasing on consumers and their financial well-being does not turn on whether a lease is the functional equivalent of a purchase finance arrangement.
Accordingly, as authorized under section 1002(15)(A)(xi)(II) of the Dodd-Frank Act, the Bureau is proposing to define the term “financial product or service” to include extending or brokering leases for automobiles, where the lease: (1) qualifies as a full-payout lease
(1) Rentals;
(2) Estimated tax benefits; and
(3) The estimated residual value of the property at the expiration of the lease term.”
12 CFR 23.2(e).
This proposed definition would ensure that such leases are subject to the same range of protections applicable to “financial product[s] or service[s]” under the Dodd-Frank Act. For example, it would ensure that the offering or providing of the defined leases is subject to the prohibition against unfair, deceptive, or abusive acts or practices in section 1031 of the Dodd-Frank Act.
The Bureau invites comments on its analysis regarding the leasing market and this proposed definition, and requests data on automobile leases generally.
The Bureau proposes to make a technical correction to the definition of “nonbank covered person” in § 1090.101 by substituting the term “consumer financial product or service” for “consumer product or service” where it appears. With this substitution, the definition would read:
(1) Any person that engages in offering or providing a consumer financial product or service; and
(2) Any affiliate of a person that engages in offering or providing a consumer financial product or service if such affiliate acts as a service provider to such person.
The Bureau proposes to make a technical correction to paragraph (iii)(D) of the definition of “annual receipts” in § 1090.104(a), which governs how the affiliate aggregation rules apply to formerly affiliated companies for purposes of the Consumer Reporting Rule. For the reasons explained below, the correction would clarify that if a company is an affiliated company of the nonbank covered person during the relevant measurement period but ceases to be an affiliated company during the same period, the annual receipts of the nonbank covered person and the formerly affiliated company must be aggregated for the entire period of measurement. As noted below, the Bureau is proposing to make the same change to paragraph (iii)(D) of the definition of “annual receipts” in § 1090.105(a) in the Consumer Debt Collection Rule.
Under section 1024(a)(3)(B) of the Dodd-Frank Act, the activities of affiliated companies are to be aggregated for purposes of computing activity levels for the larger-participant rules. In the Consumer Reporting and Consumer Debt Collection Rules, the Bureau has implemented the aggregation called for by section 1024(a)(3)(B) by prescribing the addition of all the receipts of a nonbank covered person and its affiliated companies to produce the nonbank covered person's annual receipts.
The affiliate aggregation provisions of each of the larger-participant rules address circumstances where a
This is the approach used in the Student Loan Servicing Rule's definition of “account volume” and the International Money Transfer Rule's definition of “aggregate annual international money transfers.”
The annual international money transfers of a nonbank covered person must be aggregated with the annual international money transfers of any person that was an affiliated company of the nonbank covered person at any time during the preceding calendar year. The annual international money transfers of the nonbank covered person and its affiliated companies are aggregated for the entire preceding calendar year, even if the affiliation did not exist for the entire calendar year.
The annual receipts of a formerly affiliated company are not included if affiliation ceased before the applicable period of measurement as set forth in paragraph (ii) of this definition. This exclusion of annual receipts of formerly affiliated companies applies during the entire period of measurement, rather than only for the period after which affiliation ceased.
For the same reasons described above with respect to § 1090.104(a), the Bureau proposes to replace the final sentence of paragraph (iii)(D) of § 1090.105(a)'s definition of “annual receipts” with: “The annual receipts of a nonbank covered person and its formerly affiliated company are aggregated for the entire period of measurement if the affiliation ceased during the applicable period of measurement as set forth in paragraph (ii) of this definition.”
The Bureau is proposing § 1090.108 to define larger participants of the automobile financing market because of the important role that automobiles and related financing play in consumers' lives. Autos have become indispensable for most working individuals, with nearly 90 percent of the workforce commuting to work by car, and most driving alone.
As stated above, the Bureau is proposing to define a market for automobile financing that would include grants of credit for the purchase of an automobile, refinancings of such credit obligations and any subsequent refinancings thereof, and purchases or acquisitions of such credit obligations (including refinancings). It would also include automobile leases and purchases or acquisitions of automobile lease agreements. While a significant number of consumers obtain credit to purchase their automobile,
Under the proposed automobile financing market, nonbank participants include: (1) Specialty finance companies, (2) “captive” nonbanks (commonly referred to as “captives”), and (3) Buy Here Pay Here (BHPH) finance companies.
Generally, captives are subsidiary finance companies owned by auto manufacturers. They provide consumers with financing for the primary purpose of facilitating their parent companies' and associated franchised dealers' auto sales.
BHPH finance companies are similar to captives in that they are associated with certain BHPH dealers,
According to the Bureau's estimates based on Experian Automotive's AutoCount® database,
Auto credit is provided both through direct and indirect channels creating different dynamics for consumers and industry participants. In the direct lending channel, a consumer seeks credit directly from the financing source, whereas in the indirect lending channel, the dealer typically facilitates a loan from a third-party finance source.
With indirect lending, dealers rather than consumers typically select the lender who will provide the financing. Upon completion of the vehicle selection process, the dealer usually collects basic information regarding the applicant and uses an automated system to forward that information to prospective indirect automobile lenders. After evaluating the applicant, indirect auto lenders may provide the dealer with purchase eligibility criteria or stipulations including, but not limited to, a risk-based “buy rate” that establishes a minimum interest rate at which the lender is willing to purchase a retail installment sales contract executed between the consumer and the dealer for the purchase of the vehicle.
A franchised dealer often can choose from a selection of funding sources.
With the relevant eligibility criteria and stipulations, the dealer then selects the indirect lender that will finance the loan to the consumer and extends the loan through a retail installment sales contract that the indirect lender purchases or acquires. The dealer is typically compensated for arranging indirect financing. For indirect automobile loans, the indirect automobile lender typically becomes responsible for servicing the loan and consumers will then make loan payments to the lender.
Similarly, leases may be obtained through direct or indirect channels, although most are through indirect channels. To purchase an automobile lease from a dealer, finance sources express their interest by providing the dealer with the relevant terms of a lease similar to those considered for a loan. These terms can include a “money factor,” which establishes how much a consumer will be paying in finance charges, and the length or term of the lease.
Refinancing of an existing credit obligation can enable a consumer to reduce his or her monthly auto payment. The refinancing market is highly dependent on interest rates and, thus, activity typically increases as rates decrease relative to the initial rate at origination. However, the average auto loan term for a new vehicle is relatively short at around 66 months,
Unless otherwise specified, the definitions in § 1090.101 should be used when interpreting terms in this Proposed Rule. The Proposed Rule would define additional terms relevant
The Bureau seeks comment on each of the definitions set forth in the Proposed Rule and any suggested additions, clarifications, modifications, or alternatives.
The Bureau proposes to exclude from annual originations any investments in asset-backed securities. Automobile asset-backed securities are investment vehicles in which the principal and interest payments from automobile loans serve as collateral for bonds sold to investors and do not generally alter the contractual obligation between the consumer and the entity that granted the credit or services the loan. Accordingly, the Bureau does not believe such transactions should be considered as annual originations under the Proposed Rule. The Bureau solicits comment as to whether this proposed exclusion for asset-backed securities is appropriate and whether the Bureau should define the term “asset-backed securities” in proposed § 1090.108(a).
The Bureau is also considering whether to include other types of automobile-secured loans. These could include, for example, automobile title loans, in which a lender extends credit to a consumer that is secured by the title to an automobile that the consumer owns. The Bureau is proposing to define a market for automobile financing that does not include automobile title loans because the Bureau believes that this financial product or service is substantially different from automobile financing activities. For example, auto title loans are generally provided by companies that do not compete with lenders that finance the acquisition of a vehicle. Loans provided by auto title lenders typically are not used for the activities identified in the criterion to measure market activity, such as the grant of credit to purchase an automobile or to refinance an existing credit obligation. Further, auto title loans are generally significantly shorter in term and smaller in size than loans used to purchase an automobile or to refinance an existing automobile loan. The Bureau thus believes that auto title loans might be better analyzed separately from the automobile financing market as part of a future larger-participant rulemaking.
Paragraph (ii) of the proposed definition of “aggregate annual originations” would set forth the method of aggregating the annual originations of a nonbank covered person and its affiliated companies when affiliation has started or ended within the preceding calendar year. It would provide that the annual originations of a nonbank covered person must be aggregated with the annual originations of any person that was an affiliated company of the nonbank covered person at any time during the preceding calendar year. The annual originations of a nonbank covered person and its affiliated companies would be aggregated for the entire preceding calendar year, even if the affiliation did not exist for the entire calendar year. This provision would not apply, however, if the affiliated company is a dealer that is excluded by proposed § 1090.108(c), which is discussed below.
The proposed definition of “automobile” was informed by the definition of “motor vehicle” in section 1029(f) of the Dodd-Frank Act,
Certain types of motor vehicles, such as motor homes, recreational vehicles (RVs), golf carts and motor scooters, are in markets that differ from those of the vehicles captured in the proposed definition of “automobile.” Although the Bureau does not have sufficient data on these other market segments, the Bureau does not believe that financing for the types of motor vehicles that are excluded from its proposed definition of “automobile” is done on the same scale as financing of vehicles used by consumers as transportation to work or to carry out their errands and other daily activities. Thus, the Bureau believes that the vehicles excluded from the definition likely warrant different larger-participant criteria and thresholds if they were included in the market defined for this Proposed Rule. However, the Bureau seeks comment and additional market data related to these assumptions. The Bureau also seeks comment on its proposed definition of “automobile,” specifically whether the proposed definition should address other vehicles or types of vehicles, and whether motorcycles should be a separately defined term.
The definition of “refinancing” in proposed § 1090.108(a) mirrors the Regulation Z definition except that the nonbank covered person is not required to be the original creditor or a holder or servicer of the original obligation to fall under the definition.
As an alternative, the Bureau is considering whether it would be preferable to propose a new definition of “refinancing” for purposes of the Proposed Rule. Auto finance companies that grant credit secured by a vehicle are already subject to § 1026.20(a). The Bureau believes that using the Regulation Z definition would avoid adding regulatory complexity that could arise through the creation of a new definition for purposes of this larger-participant rulemaking, but invites comments on this approach and whether the Regulation Z definition of “refinancing” with the modification described above is appropriate for purposes of the Proposed Rule.
Finally, as discussed above, the Bureau does not have a reliable data source pertaining to refinancings in the automobile market. Although the Bureau is aware that refinancings occur, particularly when interest rates are declining, there is no standard reporting available that describes what percentage of the total market for automobile
Among these options, the Bureau proposes to use aggregate annual originations as the criterion that establishes which entities are larger participants of the automobile financing market. A discussion of the definition of “aggregate annual originations” is set forth above. The Bureau expects that aggregate annual originations will be an appropriate criterion, because, among other things, it is a meaningful measure of a nonbank covered person's level of participation in the automobile financing market and of its impact on consumers. The annual number of originations by a particular nonbank entity reflects the number of loans and leases it makes or facilitates (through purchases of the loans and leases) regarding one of the most important nonfinancial assets to American households. Further, because the term “aggregate annual originations” would be defined, in part, in terms of how many loans or leases an entity granted or purchased, the aggregate annual originations criterion would generally correlate to the size of the entity's loan and lease portfolios.
The Bureau anticipates that nonbank covered persons could calculate aggregate annual originations without difficulty, should the occasion arise to do so. As a general matter, most market participants generally know the number of loans and leases they extend because they handle the servicing for these accounts. Further, they know the number of loans they make or purchase because they need to execute liens against the automobile titles. Also, nonbank covered persons in the automobile financing market will readily be able to ascertain aggregate annual originations because they are presumably expecting a payment for each loan and lease.
The Bureau has data on a significant portion of annual originations, as defined in this Proposed Rule, from Experian Automotive's AutoCount database. AutoCount is a vehicle database that collects monthly transaction data from State Departments of Motor Vehicles (DMVs). In 46 states, DMV title and registration information includes the finance source on record.
The Bureau anticipates that the proposed aggregate annual originations threshold of 10,000 would allow the Bureau to supervise market participants that represent a substantial portion of the automobile financing market and that have a significant impact on consumers. In 2013, the 38 entities that the Bureau estimates would be larger participants under the proposed threshold provided loans and leases to approximately 6.8 million consumers.
The Bureau is also considering a lower or higher threshold. For example, an aggregate annual originations threshold of 5,000 might allow the Bureau to supervise approximately 55 entities, representing nearly 93 percent of activity in this market.
The Bureau seeks comment, including suggestions of alternatives on the proposed threshold for defining larger participants of the automobile financing market.
Proposed § 1090.108(c)(1) would provide that those motor vehicle dealers that are excluded from the Bureau's authority by section 1029 of the Dodd-Frank Act do not qualify as larger participants under this section.
The Bureau invites comment on all aspects of this notice of proposed rulemaking and on the specific issues on which comment is solicited elsewhere herein, including on any appropriate modifications or exceptions to the Proposed Rule.
The Bureau is considering potential benefits, costs, and impacts of the Proposed Rule.
The Proposed Rule would define a category of nonbanks that would be subject to the Bureau's nonbank supervision program pursuant to section 1024(a)(1)(B). The proposed category would include “larger participants” of a market for “automobile financing” described in the Proposed Rule. Participation in this market would be measured on the basis of aggregate annual originations. If a nonbank covered person, together with its affiliated companies, has aggregate annual originations (measured for the preceding calendar year) of at least 10,000, it would be a larger participant in the market for automobile financing. As prescribed by existing § 1090.102, any nonbank covered person that qualifies as a larger participant would remain a larger participant until two years after the first day of the tax year in which the person last met the larger-participant test.
This analysis considers the benefits, costs, and impacts of the key provisions of the Proposed Rule against a baseline that includes the Bureau's existing rules defining larger participants in certain markets.
The Bureau notes at the outset that limited data are available with which to quantify the potential benefits, costs, and impacts of the Proposed Rule. As described above, the Bureau has utilized Experian AutoCount database for quantitative information on the number of market participants and their number and dollar volume of originations. However, the Bureau lacks detailed information about their rate of compliance with Federal consumer financial law and about the range of, and costs of, compliance mechanisms used by market participants.
In light of these data limitations, this analysis generally provides a qualitative discussion of the benefits, costs, and impacts of the Proposed Rule. General economic principles, together with the AutoCount data, provide insight into these benefits, costs, and impacts. Where possible, the Bureau has made quantitative estimates based on these principles and data as well as its experience of undertaking similar supervisory activities with respect to depository institutions and credit unions.
The discussion below describes four categories of potential benefits and costs. First, the Proposed Rule, if adopted, would authorize the Bureau to supervise certain nonbank entities in the automobile financing market. These larger participants in the market might respond to the possibility of supervision by changing their systems and conduct, and those changes might result in costs, benefits, or other impacts. Second, if the Bureau undertakes supervisory activity at specific larger participants, those companies would incur costs from responding to supervisory activity, and the results of the individual supervisory activities might also produce benefits and costs.
In considering the costs and benefits of the Proposed Rule, it is important to note that various products or services are included in the proposed automobile financing market. Direct lending, where the consumer applies for credit directly to the financial institution, makes up a relatively small portion of the total auto loan and sales volume. Direct lending is currently dominated by traditional depository institutions and credit unions already regulated by the Bureau and other governmental agencies. Indirect lending, where a dealer—rather than the consumer—finds a lender willing to provide credit to the consumer, comprises a significant portion of the automobile financing market. In addition, some consumers refinance the credit obligation for their automobile after taking out the initial loan. Finally, leasing is the other primary way in which consumers can finance the use of a vehicle; under this arrangement a financial institution holds the title to the vehicle that the consumer leases under a payment plan that typically ends with an option to purchase the vehicle.
The Proposed Rule would subject larger participants of the automobile financing market to the possibility of Bureau supervision. That the Bureau would be authorized to undertake supervisory activities with respect to a nonbank covered person who qualified as a larger participant would not necessarily mean the Bureau would in fact undertake such activities with respect to that covered entity in the near future. Rather, supervision of any particular larger participant as a result of this rulemaking would be probabilistic in nature. For example, the Bureau would examine certain larger participants on a periodic or occasional basis. The Bureau's decisions about supervision would be informed, as applicable, by the factors set forth in section 1024(b)(2), relating to the size and volume of individual participants, the risks their consumer financial products and services pose to consumers, the extent of State consumer protection oversight, and other factors that the Bureau may determine are relevant. Each entity that believed it qualified as a larger participant would know that it might be supervised and might gauge, given its circumstances, the likelihood that the Bureau would initiate an examination or other supervisory activity.
The prospect of potential supervisory activity could create an incentive for larger participants to allocate additional resources and attention to compliance with Federal consumer financial law, potentially leading to an increase in the level of compliance. These entities might anticipate that by doing so (and thereby decreasing risks to consumers) they could decrease the likelihood of their actually being subjected to supervision as the Bureau evaluated the factors outlined above. In addition, an actual examination would likely reveal any past or present noncompliance, which the Bureau could seek to correct through supervisory activity or, in some cases, enforcement actions. Larger participants might therefore judge that the prospect of supervision increased the potential consequences of noncompliance with Federal consumer financial law, and they might seek to decrease that risk by curing or mitigating any noncompliance. Larger participants might thus be able to catch and address compliance problems at an earlier point when the costs of correcting them would be lower.
The Bureau believes it is likely that many market participants would increase compliance in response to the Bureau's supervisory activities authorized by the Proposed Rule. However, because the Proposed Rule itself would not require any nonbank covered person in the automobile financing market to alter its conduct, any estimate of the amount of increased compliance would require both an estimate of current compliance levels and a prediction of market participants' behavior in response to a final rule. The data the Bureau currently has do not support a specific quantitative estimate or prediction. But, to the extent that nonbank entities allocate resources to increase their compliance in response to the Proposed Rule, that response would result in both benefits and costs to consumers and covered persons.
Increased compliance with Federal consumer financial law by larger participants in the market for automobile financing would be beneficial to consumers who either finance the purchase of or lease automobiles, or refinance their credit obligation related to the purchase of their automobile. The number of individuals who could potentially be affected is significant. As noted above, data from the first quarter of 2014 show auto lenders holding more than 87.4 million outstanding automobile loans, totaling almost $900 billion.
Several Federal consumer financial laws offer protections to consumers in regards to automobile financing as defined in the Proposed Rule, including, to the extent applicable, TILA and Regulation Z, the Fair Credit Reporting Act and Regulation V, the Consumer Leasing Act and Regulation M, ECOA and Regulation B, and the Gramm-Leach-Bliley Act and Regulation P.
The possibility of supervision also may help make incentives to comply with Federal consumer financial law more consistent between the likely larger participants and depository institutions and credit unions, which are already subject to Federal supervision with respect to Federal consumer financial law. Introducing the possibility of Federal supervision could encourage entities that would likely qualify as larger participants to devote additional resources to compliance. It could also help ensure that the benefits of Federal oversight reach consumers who do not have ready access to automobile financing through depository institutions and credit unions.
The Bureau recognizes that increasing compliance involves costs. These costs may be fixed or ongoing. Nonbank entities in the automobile financing market might need to hire or train additional personnel to effectuate any changes in their practices that would be necessary to produce the increased compliance. They might need to invest in changes to their systems to carry out their revised procedures. In addition, they might need to develop or enhance compliance management systems, to ensure awareness of any gaps in compliance. Such changes would also require investment and might entail increased operating costs.
Economic theory predicts that fixed costs will be absorbed by providers, here the entities that may qualify as larger participants. However, consumers may be adversely affected by increases in these costs to the extent these cost increases cause current providers of automobile financing to decrease volume, deter providers from increasing volume, or deter entry by new providers in the future.
An entity that incurs ongoing costs in support of increasing compliance might try to recoup these costs by attempting to pass those costs directly through to consumers; for example, in the case of the indirect channel, this could occur through lowering fees or other forms of compensation paid to dealers and other entities. Whether and to what extent either change would occur depends on the relative elasticities of supply and demand in the automobile financing market. These elasticities can vary across products or services that would be covered by the Proposed Rule and may be influenced by the presence of substitute products or services as well as the availability of information, which would influence the perceived availability of substitute products or services. For example, larger participants of the automobile financing market may be in competition with depository institutions or credit unions (or affiliates thereof) that are already subject to supervision by the Bureau and/or Federal prudential regulators with respect to Federal consumer financial law. To the extent the Proposed Rule would result in an increase in the costs faced by larger participants, that increase would be a competitive benefit to banks and credit unions with sufficient liquidity to expand their financing operations. Competition from banks and credit unions might reduce the ability of larger participants to pass through cost increases to consumers, dealers, or other entities as they may instead seek alternate sources of financing. Moreover, consumers might respond to such a cost increase by reducing the amounts they are willing to pay in other aspects of the automobile purchase transaction, while dealers could respond to decreased levels of financing revenues shared with them by larger participants by either attempting to increase revenues derived from other areas of the automobile purchase transaction, such as the stated price of the vehicle or costs of accessories, or bearing the loss of revenue.
In considering any potential price effect of the Proposed Rule, it is important to take into account the fact
In addition to the responses of market participants anticipating supervision, the possible consequences of the Proposed Rule would include the responses to and effects of individual examinations or other supervisory activities that the Bureau might conduct in the automobile financing market.
Supervisory activity could provide several types of benefits. For example, as a result of supervisory activity, the Bureau and an entity might uncover deficiencies in the entity's policies and procedures. The Bureau's examination manual calls for the Bureau generally to prepare a report of each examination, to assess the strength of the entity's compliance mechanisms, and to assess the risks the entity poses to consumers, among other things. The Bureau would share examination findings with the examined entity because one purpose of supervision is to inform the entity of problems detected by examiners. Thus, for example, an examination might find evidence of widespread noncompliance with Federal consumer financial law, or it might identify specific areas where an entity has inadvertently failed to comply. These examples are only illustrative of the kinds of information an examination might uncover.
Detecting and informing entities about such problems should be beneficial to consumers. When the Bureau notifies an entity about risks associated with an aspect of its activities, the entity is expected to adjust its practices to reduce those risks. That response may result in increased compliance with Federal consumer financial law, with benefits like those described above. Or it may avert a violation that would have occurred had Bureau supervision not detected the risk promptly. The Bureau may also inform entities about risks posed to consumers that fall short of violating the law. Action to reduce those risks would also be a benefit to consumers.
Given the obligations nonbank covered persons in the automobile financing market have under Federal consumer financial law and the existence of efforts to enforce such law, the results of supervision also may benefit entities under supervision by detecting compliance problems early. When an entity's noncompliance results in litigation or an enforcement action, the entity must face both the costs of defending its actions and the penalties for noncompliance, including potential liability for damages to private plaintiffs. The entity must also adjust its systems to ensure future compliance. Changing practices that have been in place for long periods of time can be expected to be relatively difficult because the practices may be severe enough to represent a serious failing of an entity's systems. Supervision may detect flaws at a point when correcting them would be relatively inexpensive. Catching problems early can, in some situations, forestall costly litigation. To the extent early correction limits the amount of consumer harm caused by a violation, it can help limit the cost of redress. In short, supervision might benefit larger participants by, in the aggregate, reducing the need for other more expensive activities to achieve compliance.
The potential costs of actual supervisory activities would arise in two categories. The first would involve any costs to larger participants of increasing compliance in response to the Bureau's findings during supervisory activity and to supervisory actions. These costs would be similar in nature to the possible compliance costs, described above, that larger participants in general might incur in anticipation of possible supervisory actions. This analysis will not repeat that discussion. The second category would be the cost of supporting supervisory activity.
Supervisory activity may involve requests for information or records, on-site or off-site examinations, or some combination of these activities. For example, in an on-site examination, Bureau examiners generally contact the entity for an initial conference with management. That initial contact is often accompanied by a request for information or records. Based on the discussion with management and an initial review of the information received, examiners determine the scope of the on-site exam. While on-site, examiners spend some time in further conversation with management about the entity's policies, procedures, and processes. The examiners also review documents, records, and accounts to assess the entity's compliance and evaluate the entity's compliance management system. As with the Bureau's other examinations, examinations of nonbank larger participants of the automobile financing market could involve issuing confidential examination reports and compliance ratings. The Bureau's examination manual describes the supervision process and indicates what materials and information an entity could expect examiners to request and review, both before they arrive and during their time on-site.
The primary cost an entity would face in connection with an examination would be the cost of employees' time to collect and provide the necessary information. If the Proposed Rule is adopted, the frequency and duration of examinations of any particular entity would depend on a number of factors, including the size of the entity, the compliance or other risks identified, whether the entity has been examined previously, and the demands on the Bureau's supervisory resources imposed by other entities and markets. Nevertheless, some rough estimates may be useful to provide a sense of the magnitude of potential staff costs that entities might incur.
The cost of supporting supervisory activity may be calibrated using prior Bureau experience in supervision. The Bureau considers its auto financing examinations at depository institutions and credit unions as a reasonable proxy for the duration and labor intensity of potential nonbank larger participant examinations. This belief arises from the similar role these institutions play in the market for automobile financing, where they frequently coexist as direct competitors to one another.
The average duration of the on-site portion of Bureau bank auto financing examinations is approximately 9 weeks.
The Bureau declines to predict, at this point, precisely how many examinations in the automobile financing market it would undertake in a given year. If the Proposed Rule is adopted, the Bureau would be able to undertake supervisory activity in the identified market; however, neither the Dodd-Frank Act nor the Proposed Rule specifies a particular level or frequency of examinations. Given the Bureau's finite supervisory resources, and the range of industries over which it has supervisory responsibility for consumer financial protection, when and how often a given larger participant would be supervised is uncertain. The frequency of examinations would depend on a number of factors, including the Bureau's understanding of the conduct of market participants and the specific risks they pose to consumers; the responses of larger participants to prior examinations; and the demands that other markets make on the Bureau's supervisory resources. These factors can be expected to change over time, and the Bureau's understanding of these factors may change as it gathers more information about the market through its supervision and by other means.
The larger-participant rule does not require nonbank entities to assess whether they are larger participants. However, the Bureau acknowledges that in some cases they might decide to incur costs in assessing whether they qualify as larger participants and potentially disputing their status.
Larger-participant status depends on a nonbank's aggregate annual originations, as defined in the Proposed Rule. An estimate of this number should be readily extractible from company records, as market participants likely evaluate the components of aggregate annual originations as part of their regular business practices. In addition, information on originations can be derived from title records that market participants maintain and publicly record.
To the extent that some nonbank covered persons in the automobile financing market do not already know whether their aggregate annual originations exceed the threshold, such entities might, in response to the Proposed Rule, develop new systems to count their aggregate annual originations in accordance with the definition in the Proposed Rule. The data the Bureau currently has do not support a detailed estimate of how many nonbank entities would engage in such development or how much they might spend. Regardless, nonbank entities would be unlikely to spend significantly more on specialized systems to count aggregate annual originations than it would cost them to be supervised by the Bureau as larger participants. It bears emphasizing that even if expenditures on an accounting system successfully proved that a nonbank covered person in the automobile financing market was not a larger participant, it would not necessarily follow that this entity could not be supervised. The Bureau can supervise a nonbank entity whose conduct the Bureau determines, pursuant to section 1024(a)(1)(C), poses risks to consumers. Thus, a nonbank entity choosing to spend significant amounts on an accounting system directed toward the larger-participant test could not be sure it would not be subject to Bureau supervision notwithstanding those expenses. The Bureau therefore believes it is unlikely that any but a very few nonbank entities would undertake such expenditures.
Finally, the Bureau is proposing to define the term “financial product or service” to include automobile leases that (1) meet the requirements of section 108 of CEBA, as implemented by 12 CFR part 23, and are thus, permissible for banks to offer or provide; and (2) are not currently defined as a financial
Benefits of the proposed definition would stem from enhanced consumer protections relating to automobile leases that would fall under the definition. As financial products or services under the Dodd-Frank Act, such leases would become subject to the UDAAP prohibition under section 1031 of the Dodd-Frank Act. These leases are already subject to a similar prohibition against unfair or deceptive acts or practices (UDAP) in or affecting commerce under section 5 of the Federal Trade Commission Act (FTC Act).
The proposed definition also has the potential to expand supervisory activities in two distinct ways. First, the proposed definition, as incorporated into the larger participant rule proposal, could bring certain nonbank entities under Bureau supervision by expanding the activities counted in determining whether participants of the automobile financing market qualify as larger participants and are thus subject to supervision under the Proposed Rule. To the extent that nonbank entities in the automobile financing market would be brought under supervision as a result of the proposed definition, both consumers and covered persons would benefit. The nature of these benefits, including from both the possibility of supervision and actual individual supervisory activities, are discussed above.
Second, the proposed definition could affect the scope of supervision for other nonbank entities and certain banks and credit unions.
With respect to banks and credit unions, the Bureau has supervisory authority over large banks with total assets of more than $10 billion (and their affiliates) for compliance with Federal consumer financial laws, and the prudential regulators exercise primary supervisory authority over other banks with total assets of $10 billion or less for compliance with Federal consumer financial laws. As noted above, although the proposed definition would not expand the leasing activities of banks subject to supervision, for leasing covered under the proposed definition, it would expand the scope of that supervision to include compliance with section 1031 of the Dodd-Frank Act. Again, the benefits to consumers of that expanded supervision authority would be similar to the general benefits of supervision discussed above.
Although the Bureau has identified the above potential consumer benefits from the expanded supervision authority that could result from the proposed definition, the Bureau believes such benefits would be limited in extent. Most significantly, as discussed above, the Bureau believes that most automobile leases currently qualify as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act. Thus, the Bureau believes that few, if any, nonbank participants in the automobile financing market will be subject to the Bureau's supervision under the Proposed Rule as a result of the proposed definition. Further, for bank and nonbank entities that would be subject to supervision even absent the proposed definition, the Bureau believes that the proposed definition would expand only the scope of supervision of the leasing activities of such entities. Notably, even absent the proposed definition, all leasing activities of such entities would be subject to supervision by the Bureau or the prudential regulators for compliance with the “enumerated consumer laws” as defined in section 1002(12) of the Dodd-Frank Act, including the Consumer Leasing Act.
Finally, under section 1031(b) of the Dodd-Frank Act, the Bureau has authority to prescribe rules applicable to a covered person or service provider identifying as unlawful unfair, deceptive, or abusive acts or practices in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service. Thus, if the proposed definition is finalized, the Bureau could promulgate such rules in connection with transactions for the leases that would fall under the proposed definition. The Bureau would consider the benefits, costs, and impacts of any such rulemaking as part of its analysis under section 1022 for that rulemaking. The Bureau notes that any such rulemaking would likely aim to provide consumers and covered persons with additional clarity in regard to identifying unfair, deceptive or abusive acts or practices. It is not possible, however, to identify
The proposed definition would impose compliance costs on covered persons by subjecting leasing activities that fall under the proposed definition to the UDAAP prohibitions in section 1031 of the Dodd-Frank Act. Those entities would incur some cost of compliance because, as laid out above, the prohibitions under section 1031 of the Dodd-Frank Act and section 5 of the FTC Act are not co-extensive: In particular, section 5 of the FTC Act does not include a prohibition on abusive acts or practices similar to that under section 1031 of the Dodd-Frank Act. However, given the fact that, as interpreted by the Bureau, section 1002(15)(A)(ii) covers most automobile leases and the substantial overlap of the prohibited conduct under section 1031 of the Dodd-Frank Act and section 5 of the FTC Act, in the Bureau's judgment, the compliance costs to covered persons of this new prohibition would be limited in extent.
Regarding supervision, the proposed definition, as incorporated into the larger participant rule proposal, could also bring certain nonbank entities under Bureau supervision and would affect the scope of supervision for other nonbank entities, banks, and credit unions. With respect to nonbanks, the proposed definition would, as discussed above, expand the activities counted in determining whether participants of the automobile financing market qualify as larger participants and are thus subject to supervision under the Proposed Rule. To the extent that larger participants in the automobile financing market are brought under supervision as a result of the proposed definition, such entities would incur costs. The nature of these costs, including from the possibility of supervision as well as from actual individual supervisory activities, are discussed above. For participants of the automobile financing market that would be subject to supervision under the proposed larger-participant rule even absent the proposed definition, the proposed definition would impose costs by expanding the leasing activities of such entities subject to supervision for compliance with section 1031 of the Dodd-Frank Act. With respect to banks and credit unions, by expanding the leasing activities subject to the section 1031 UDAAP prohibition, as discussed above, the proposed definition would correspondingly expand the activities subject to supervision by either the Bureau or the prudential regulators, as applicable, for compliance with that prohibition.
For both banks and nonbanks, the Bureau believes that the increased costs of supervision identified above would be small. As discussed above, the Bureau believes that most auto leases currently qualify as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act. Thus, the Bureau believes that few, if any, nonbank participants in the automobile financing market will be brought under Bureau supervision under the Proposed Rule as a result of the proposed definition. Similarly, for banks and nonbank entities that would be subject to supervision even absent the proposed definition, the Bureau believes that the proposed definition would only subject the leasing activities of such entities to slightly expanded supervision. Notably, even absent the proposed definition, all leasing activities of such entities would be subject to supervision by the Bureau or the prudential regulators for compliance with the enumerated consumer laws, including the Consumer Leasing Act.
Finally, under section 1031(b) of the Dodd-Frank Act, the Bureau has authority to prescribe rules applicable to a covered person or service provider identifying as unlawful unfair, deceptive, or abusive acts or practices in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service. Thus, if the proposed definition is finalized, the Bureau could promulgate such rules in connection with transactions for the leases that would fall under the proposed definition. Such a rule may impose costs on covered persons or service providers. It is not possible to identify with any greater specificity here the potential costs to covered persons or service providers of any such hypothetical future rulemaking. The Bureau notes, however, that it would consider the benefits, costs, and impacts of any such rulemaking as part of its analysis under section 1022 for that rulemaking.
The Bureau is considering different thresholds for larger-participant status
The Bureau is also considering various other criteria for assessing larger-participant status, including dollar volume of originations and total unpaid principal balances. Calculating either of these metrics might be more involved than calculating the number of originations for a given nonbank entity. If so, then a given entity might face greater costs for evaluating or disputing whether it qualified as a larger participant should the occasion to do so arise. Additionally, as some nonbank entities might, for example, specialize in sectors featuring higher average loan amounts or different prepayment and default rates than others, using aggregate annual originations more directly captures the number of consumers impacted by the Proposed Rule. For each criterion, the Bureau expects that it could choose a suitable threshold for which the set of larger participants, among those entities participating in the market today, would be similar to those expected to qualify under the Proposed Rule. Consequently, the costs, benefits, and impacts of this Proposed Rule should not depend on which criterion the Bureau uses.
No depository institutions or credit unions of any size would become larger participants in the market for automobile leases under the Proposed Rule. Further, as explained above, the proposed change in the definition of financial product or service would not in itself have any significant effect on depository institutions and credit unions with $10 billion or less in total assets. Nevertheless, the Proposed Rule might, as discussed above, have some impact on depository institutions or credit unions that provide financing for automobile transactions. The Proposed Rule might therefore alter market dynamics in a market in which some depository institutions and credit unions with less than $10 billion in assets may be active. For example, if nonbanks' price of credit for loan acquisitions or leases were to increase, or similarly were the compensation for selling those same products to decrease due to increased costs related to supervision, then depository institutions or credit unions of any size might benefit by the relative change in competitors' costs.
Because the rule applies uniformly to automobile financing transactions of both rural and non-rural consumers, the rule should not have a unique impact on rural consumers. The Bureau is not aware of any evidence suggesting that rural consumers have been disproportionately harmed by nonbank entities' failure to comply with Federal consumer financial law. The Bureau would welcome any comments that may provide information related to how automobile financing transactions affect rural consumers.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996,
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) of any proposed rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.
The undersigned certifies that the Proposed Rule, if adopted, would not have a significant economic impact on a substantial number of small entities and that an IRFA is therefore not required.
The Proposed Rule would define a class of nonbank covered persons as larger participants of the automobile financing market and thereby would authorize the Bureau to undertake supervisory activities with respect to those nonbank covered persons. The Proposed Rule would also define the term “financial product[s] or service[s]” to include automobile leases that (1) meet the requirements of section 108 of CEBA, as implemented by 12 CFR part 23, and are thus permissible for banks to offer or provide; and (2) are not currently defined as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act. The Proposed Rule would not affect a substantial number of small businesses.
Regarding insured depositories and credit unions, these entities are small businesses only if their assets are below $550 million. The proposed definition of larger participants of the automobile financing market applies only to nonbank entities, so it would have no impact on depository institutions or
Regarding nonbank entities, the Proposed Rule adopts a threshold for larger-participant status of at least 10,000 aggregate annual originations.
Finally, the proposed definition of the term financial product or service to include certain automobile leases would have little impact on small nonbank entities engaged in automobile leasing. As mentioned above, the vast majority of automobile leases likely already qualify as a financial product or service under section 1002(15)(A)(ii) of the Dodd-Frank Act, and so the change in definition is unlikely to affect the larger-participant status of any small business. With respect to costs related to compliance, if the proposed definition is finalized, small nonbanks would have to comply with the UDAAP prohibition under section 1031 of the Dodd-Frank Act when providing automobile leases covered under the proposed definition. However, as with small banks, small nonbanks that provide automobile leases must already comply with similar UDAP prohibitions under section 5 of the FTC Act as well as the applicable enumerated consumer laws, such as the Consumer Leasing Act. Additionally, as explained above, there are likely to be few, if any, small nonbank businesses in the automobile financing market that would be subject to supervision irrespective of the proposed definition. To the extent that any small nonbanks are larger participants under the Proposed Rule, the Bureau believes that the proposed definition would expand the scope of leasing activities of such entities subject to supervision for compliance with section 1031. The economic impact of this expansion in scope would not be significant. Notably, even absent the proposed definition, all leasing activities of such entities would be subject to supervision by the Bureau for compliance with the enumerated consumer laws, including the Consumer Leasing Act.
Considering the limited public information available for several of the smallest potential larger participants, the Bureau requests comment on the impact of the Proposed Rule on small nonbank entities and solicits data that may be relevant to this analysis. The Bureau also solicits comments on whether NAICS code 522220 or any other NAICS code is more appropriate for this market.
Additionally, if a larger participant's annual receipts fell below the $38.5 million SBA size standard, the Proposed Rule would not result in a “significant impact” on the entity. The Proposed Rule would not itself impose any business conduct obligations beyond those described above regarding the automobile leases defined under the Proposed Rule as financial products or services. Furthermore, the Bureau's supervisory activity would have very little economic impact on a supervised entity. When and how often the Bureau would in fact engage in supervisory activity, such as an examination, with respect to a larger participant (and, if so, the extent of such activity) would depend on a number of considerations, including the Bureau's allocation of resources and the application of the statutory factors set forth in section 1024(b)(2) of the Dodd-Frank Act. Given the Bureau's finite supervisory resources, and the range of industries over which it has supervisory responsibility for consumer financial protection, when and how often a given a larger participant would be supervised is uncertain. Moreover, if supervisory activity occurred, the costs that would result from such activity are expected to
Finally, section 1024(e) of the Dodd-Frank Act authorizes the Bureau to supervise service providers to nonbank covered persons encompassed by section 1024(a)(1), which includes larger participants. Because the Proposed Rule does not specifically address service providers, effects on service providers need not be discussed for purposes of this RFA analysis. Even were such effects relevant, the Bureau believes that it would be very unlikely that any supervisory activities with respect to the service providers to the approximately 38 potential larger participants of the proposed market for automobile financing would result in a significant economic impact on a substantial number of small entities.
Accordingly, the undersigned certifies that the Proposed Rule would not have a significant economic impact on a substantial number of small entities.
The Bureau has determined that this Proposed Rule would not impose any new recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would constitute collections of information requiring approval under the Paperwork Reduction Act, 44 U.S.C. 3501,
Consumer protection, Credit.
For the reasons set forth in the preamble, the Bureau proposes to add 12 CFR part 1001 and proposes to amend 12 CFR part 1090, subpart B, to read as follows:
12 U.S.C. 5481(15)(A)(xi); and 12 U.S.C. 5512(b)(1).
Under 12 U.S.C. 5481(15)(A)(xi), the Bureau is authorized to define certain financial products or services for purposes of title X of the Dodd-Frank Act, Public Law 111-203, 124 Stat. 1376 (2010) (Title X) in addition to those defined in 12 U.S.C. 5481(15)(A)(i)-(x). The purpose of this part is to implement that authority.
Except as otherwise provided in Title X, in addition to the definitions set forth in 12 U.S.C. 5481(15)(A)(i)-(x), the term “financial product or service” means, for purposes of Title X:
(a) Extending or brokering leases of an automobile, as defined by 12 CFR 1090.108(a), where the lease:
(1) Qualifies as a full-payout lease and a net lease, as provided by 12 CFR 23.3(a), and has an initial term of not less than 90 days, as provided by 12 CFR 23.11; and
(2) Is not a financial product or service under 12 U.S.C. 5481(15)(A)(ii).
12 U.S.C. 5514(a)(1)(B); 12 U.S.C. 5514(a)(2); 12 U.S.C. 5514(b)(7)(A); and 12 U.S.C. 5512(b)(1).
(1) Any person that engages in offering or providing a consumer financial product or service; and
(2) Any affiliate of a person that engages in offering or providing a consumer financial product or service if such affiliate acts as a service provider to such person.
(a) * * *
(iii) * * *
(D) The annual receipts of a formerly affiliated company are not included if the affiliation ceased before the applicable period of measurement as set forth in paragraph (ii) of this definition. The annual receipts of a nonbank covered person and its formerly affiliated company are aggregated for the entire period of measurement if the affiliation ceased during the applicable period of measurement as set forth in paragraph (ii) of this definition.
(a) * * *
(iii) * * *
(D) The annual receipts of a formerly affiliated company are not included if the affiliation ceased before the applicable period of measurement as set forth in paragraph (ii) of this definition. The annual receipts of a nonbank
(a)
(i)
(A) Annual originations means the sum of the following transactions for the preceding calendar year:
(1) Credit granted for the purpose of purchasing an automobile;
(2) Automobile leases;
(3) Refinancings of obligations described in (1) above, and any subsequent refinancings thereof; and
(4) Purchases or acquisitions of obligations described in (1) or (3) above or of automobile lease agreements.
(B) The term annual originations does not include investments in asset-backed securities.
(ii)
(b)
(c)
(1) persons excluded from the authority of the Bureau by 12 U.S.C. 5519; and
(2) persons who meet the definition in 12 U.S.C. 5519(f)(2); are identified in 12 U.S.C. 5519(b)(2); and are predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both.
Federal Housing Finance Board, Federal Housing Finance Agency.
Proposed rule.
The proposed rule would transfer existing parts 931 and 933 of the Federal Housing Finance Board (Finance Board) regulations, which address requirements for Federal Home Loan Bank (Bank) capital stock and capital plans, to new Part 1277 of the Federal Housing Finance Agency (FHFA) regulations. The proposed rule would not make any substantive changes to these requirements, but would delete certain provisions that applied only to the one-time conversion of Bank stock to the new capital structure required by the Gramm-Leach-Bliley Act (GLB Act). It would also make certain clarifying changes so that the rules would more precisely reflect long-standing practices and requirements with regard to transactions in Bank stock. Most significantly, the proposed rule would add appropriate references to “former members” to clarify when former Bank members can be required to maintain investment in Bank capital stock after withdrawal from the Bank.
Comments must be received on or before December 8, 2014.
You may submit your comments on the proposed rule, identified by regulatory information number (RIN) 2590-AA71 by any of the following methods:
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Julie Paller, Senior Financial Analyst,
Section 553 of the Administrative Procedure Act generally requires an
Copies of all comments received by the deadline will be posted without change on the FHFA Web site at
Effective July 30, 2008, the Housing and Economic Recovery Act of 2008 (HERA)
The twelve Banks are instrumentalities of the United States organized under the Federal Home Loan Bank Act (Bank Act).
In 1999, the GLB Act
As part of the process for converting the “old” capital stock to the new GLB Act Class A and Class B stock, the GLB Act required each Bank to adopt and maintain a capital plan that established the rights, terms and preferences of each class or subclass of capital stock that it would issue.
Under the Finance Board regulations, each Bank had discretion as to when it would convert to the new capital structure. The Finance Board regulations also addressed in detail the process for the one-time conversion to the new capital structure, including requirements for disclosure to be given to members prior to the conversion. Since the Finance Board originally adopted these regulations in 2001, all Banks have converted to the GLB Act capital structure. The original Finance Board regulations have not yet been amended, however, to remove provisions that applied only to the initial conversion process.
When promulgating regulations relating to the Banks, section 1313(f) of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) requires the Director of FHFA (Director) to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability.
The proposed rule would transfer the Finance Board Bank capital stock regulations from 12 CFR part 931 and the Bank capital plan regulations from 12 CFR part 933 to subparts C and D of new part 1277 of FHFA regulations, respectively. Relevant definitions for parts 931 and 933 would be transferred to subpart A of new part 1277.
FHFA also proposes to define the term “former member” as an institution whose membership in a Bank has been terminated, but which continues to hold stock in the Bank as required by the Bank's capital plan, and includes any successor to such institution that continues to hold the Bank's stock that had been issued to the acquired institution. As discussed more fully below, FHFA proposes to add various references to “former member” in the regulatory text to clarify that under the Bank Act and existing regulations, such institutions can be required to hold Bank stock in certain situations after termination of their Bank membership.
As already noted, FHFA also proposes to clarify in various provisions that former members can be required to hold Bank stock, or otherwise engage in stock transactions, after withdrawal. For example, an institution is not required upon withdrawal to pay off all outstanding advances or other activity, but instead, a Bank can allow such institution to liquidate such indebtedness in an orderly manner.
In other situations, a Bank may not be required to purchase a former member's stock upon withdrawal because the relevant redemption periods have not been completed on such date.
To account for such situations, FHFA proposes to add relevant references to former members in a number of provisions, including proposed §§ 1277.21, 1277.22, 1277.25, 1277.26, and 1277.28(d)(4). Because FHFA generally has continued the Finance Board's approach and interpreted references to “member” in these regulations to include a former member, when appropriate, FHFA views these changes as clarifying in nature.
FHFA also proposes to add clarifying language to § 1277.23. The new language provides that any provision in a Bank's capital plan related to stockholder rights in a liquidation, merger or consolidation of the Bank cannot limit FHFA's authority under the Bank Act or the Safety and Soundness Act to issue a regulation or order or to take any other action that may affect or otherwise alter the rights or privileges of stock holders in these situations. FHFA believes that the proposed language is consistent to wording that already has been incorporated into each Bank's approved capital plan and therefore will not alter the scope of current approved capital plan provisions that address the Bank's liquidation, merger or consolidation.
FHFA also proposes not to reissue duplicative provisions related to the calculation and application of a member's, or former member's, minimum investment requirements. These requirements are now contained in both § 931.3 of the rules, which sets forth requirements for the minimum stock investment, and § 933.2(a), which sets forth the requirements for a Bank's capital plan related to the minimum
FHFA also proposes to add to subpart D new § 1277.29 to address amendments to approved Bank capital plans. The current part 933 rules do not specifically address the process for submitting capital plan amendments for FHFA approval, although the Bank Act allows Banks to amend their capital plans with such approval.
The information collection, entitled “Capital Requirements for the Federal Home Loan Banks,” contained in the current 12 CFR parts 931 and 933 of the regulations that would be transferred to 12 CFR part 1277 by this proposed rule, has been assigned control number 2590-0002 by the Office of Management and Budget (OMB). The proposed rule if adopted as a final rule would not substantively or materially modify the current, approved information collection.
The proposed rule applies only to the Banks, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (RFA).
Capital, Credit, Federal home loan banks, Investments, Reporting and recordkeeping requirements.
Capital, Credit, Federal home loan banks, Investments, Reporting and recordkeeping requirements.
Accordingly, for reasons stated in the Preamble and under the authority of 12 U.S.C. 1426, 1436, 1440, 1443, 1446, 4511, 4513, 4526, FHFA proposes to amend subchapter E of chapter IX and subchapter D of chapter XII of title 12 of the Code of Federal Regulations as follows:
12 U.S.C. 1426, 1436(a), 1440, 1443, 1446, 4511, 4513, 4514, 4526, 4612.
As used in this part:
The authorized capital stock of a Bank shall consist of the following instruments:
(a) Class A stock, which shall:
(1) Have a par value as determined by the board of directors of the Bank and stated in the Bank's capital plan;
(2) Be issued, redeemed, and repurchased only at its stated par value; and
(3) Be redeemable in cash only on six-months written notice to the Bank.
(b) Class B stock, which shall:
(1) Have a par value as determined by the board of directors of the Bank and stated in the Bank's capital plan;
(2) Be issued, redeemed, and repurchased only at its stated par value;
(3) Be redeemable in cash only on five-years written notice to the Bank; and
(4) Confer an ownership interest in the retained earnings, surplus, undivided profits, and equity reserves of the Bank; and
(c) Any one or more subclasses of Class A or Class B stock, each of which may have different rights, terms, conditions, or preferences as may be authorized in the Bank's capital plan, provided, however, that each subclass of stock shall have all of the characteristics of its respective class, as specified in paragraph (a) or (b) of this section.
A Bank may issue either one or both classes of its capital stock (including subclasses), as authorized by § 1277.20, and shall not issue any other class of capital stock. A Bank shall issue its stock only to its members, or to former members to the extent those institutions are required to maintain a minimum stock investment for existing activities under the capital plan, and only in book-entry form. The Bank shall act as its own transfer agent. All capital stock shall be issued in accordance with the Bank's capital plan.
(a) A Bank shall require each member to maintain a minimum investment in the capital stock of the Bank, both as a condition to becoming and remaining a member of the Bank and as a condition to transacting business with the Bank or obtaining advances and other services from the Bank. The amount of the required minimum investment shall be determined in accordance with the Bank's capital plan and shall be sufficient to ensure that the Bank remains in compliance with its regulatory capital requirements. A Bank shall require each member to maintain its minimum investment for as long as the institution remains a member of the Bank and shall require each member and former member to maintain its minimum investment for as long as the institution engages in any activity with the Bank for which the capital plan requires the institution to maintain capital stock.
(b) A Bank may establish the minimum investment as a percentage of the total assets of an institution, as a percentage of the advances outstanding to that institution, as a percentage of any other business activity conducted with the institution, on any other basis that is approved by the Director, or any combination thereof.
(c) A Bank may require that the minimum investment requirement be satisfied through the purchase of either Class A or Class B stock, or through the purchase of one or more combinations of Class A and Class B stock that have been authorized by the board of directors of the Bank in its capital plan. A Bank, in its discretion, may establish a lower minimum investment to the extent the requirement is met through investment in Class B stock than if the requirement is met through investment in Class A stock, provided that such reduced investment provides sufficient capital for the Bank to remain in compliance with its regulatory capital requirements.
(d) Each member, or if applicable, former member, of a Bank shall at all times maintain an investment in the capital stock of the Bank in an amount that is sufficient to satisfy the minimum investment required under the Bank's capital plan.
(a)
(b)
The respective rights of the Class A and Class B stockholders, in the event that the Bank is liquidated, or is merged or otherwise consolidated with another Bank, shall be determined in accordance with the capital plan of the Bank, provided, however, that nothing in the capital plan shall be construed to limit any rights or authority granted FHFA under the Bank Act or the Safety and Soundness Act to issue any regulation or order or to take any other action that may affect or otherwise alter the rights or privileges of stock holders in a liquidation, merger or consolidation of a Bank.
A Bank in its capital plan may allow a member or former member to transfer any excess stock to a member of that Bank or to an institution that has been approved for membership in that Bank and that has satisfied all conditions for becoming a member, other than the purchase of the minimum amount of Bank stock that it is required to hold as a condition of membership. Any such stock transfers shall be at par value and shall be effective upon being recorded on the appropriate books and records of the Bank. The Bank may, in its capital plan, require that the transfer be approved by the Bank before such transfer can occur.
(a)
(2) A member may cancel a notice of redemption by so informing the Bank in writing, and the Bank may impose a fee (to be specified in its capital plan) with respect to any cancellation of a pending notice of redemption. A request by a member (whose membership has not been terminated) to redeem specific shares of stock shall automatically be cancelled if the Bank is prevented from redeeming the member's stock by paragraph (c) of this section within five business days from the end of the expiration of the applicable redemption notice period because the member would fail to maintain its minimum investment in the stock of the Bank after such redemption. The automatic cancellation of a member's redemption request shall have the same effect as if the member had cancelled its notice to redeem stock prior to the end of the redemption notice period, and a Bank may impose a fee (to be specified in its capital plan) for automatic cancellation of a redemption request.
(3) A Bank shall not be obligated to redeem its capital stock other than in accordance with this paragraph.
(b)
(c)
(a)
(b)
Each Bank shall have in place a capital plan approved by the Bank's board of directors and the Director. The capital plan shall include, at a minimum, provisions addressing the following matters:
(a)
(2) The capital plan shall specify the amount and class (or classes) of Bank stock that an institution is required to own in order to become and remain a member of the Bank, and to obtain advances from, or to engage in other business transactions with, the Bank. If a Bank requires that the minimum investment be satisfied through the purchase of one or more combinations of Class A and Class B stock, the authorized combinations of stock shall be specified in the capital plan, which shall afford the option of satisfying the minimum investment through the purchase of any such combination of stock.
(3) The capital plan shall require the board of directors of the Bank to monitor and, as necessary, to adjust, the minimum investment to ensure that outstanding stock remains sufficient for the Bank to comply with its regulatory capital requirements. The plan shall require each member or, where required by the plan, former member, to comply promptly with any adjusted minimum investment established by the board of directors of the Bank, but may allow a reasonable time to do so and may allow a reduction in outstanding business with the Bank as an alternative to purchasing additional stock.
(b)
(c)
(d)
(1) Shall provide that the Bank may not issue stock other than in accordance with § 1277.21 of this part;
(2) Shall provide that the stock of the Bank may be issued only to and held only by the members of that Bank, and by former members to the extent necessary to meet requirements set forth in a capital plan;
(3) Shall specify whether the stock of the Bank may be transferred, as allowed
(4) Shall specify that the stock of the Bank may be traded only among the Bank and its members, and former members;
(5) May provide for a minimum investment based on investment in Class B stock that is lower than a minimum investment based on investment in Class A stock, provided that the level of investment is sufficient for the Bank to comply with its regulatory capital requirements;
(6) Shall specify the fee, if any, to be imposed upon cancellation of a request to redeem Bank stock or upon cancellation of a request to withdraw from membership; and
(7) Shall specify the period of notice that the Bank will provide before the Bank, on its own initiative, determines to repurchase any excess Bank stock.
(e)
(a)
(b)
(1) The name of the Bank making the request and the name, title, and contact information of the official filing the request;
(2) The name, title and contact information of the staff member(s) whom FHFA may contact for additional information;
(3) A certification by an executive officer of the Bank with knowledge of the facts that the representations made in the request are accurate and complete. The following form of certification may be used: “I hereby certify that the statements contained in the submission are true and complete to the best of my knowledge. [Name and Title]”;
(4) A written, narrative description of the proposed amendments to the Bank's capital plan and a discussion of the Bank's reasons for the proposed changes;
(5) The amended capital plan as approved by the Bank's board of directors;
(6) A version of the Bank's capital plan showing all proposed changes to its previously approved capital plan;
(7) Resolutions of the Bank's board of directors:
(i) Approving the proposed capital plan amendments; and
(ii) Authorizing the filing of the application for approval of the amendments and concurring in substance with the supporting documentation provided;
(8) An opinion of counsel demonstrating that the proposed amendments comply with the Bank Act, FHFA regulations and any other applicable law or regulation. If the amendments would be identical in substance to provisions approved for other Banks' capital plans, a Bank's legal analysis may reference the other capital plans that contain the provisions in question;
(9) An analysis of the effect of the proposed amendments, if any, on the Bank's capital levels and the Bank's ability to meet its regulatory capital requirements;
(10)
(11) A discussion of and an explanation for changes to the Bank's strategic plan, if any, which may be related to the capital plan amendments.
(c)
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (SNPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Sikorsky Aircraft Corporation (Sikorsky) Model S-61A, D, E, L, N, NM (serial number 61454), R, and V; Croman Corporation Model SH-3H, Carson Helicopters, Inc., Model S-61L; Glacier Helicopters, Inc. Model CH-3E; Robinson Air Crane, Inc. Model CH-3E, CH-3C, HH-3C, and HH-3E; and Siller Helicopters Model CH-3E and SH-3A helicopters. This SNPRM is prompted by comments received in response to a previous SNPRM and a reevaluation of the relevant data. This SNPRM retains the proposed actions in the previous SNPRM, provides an increased estimated cost of the main rotor shaft (MRS) replacement, and clarifies some of the language in the Required Actions section of the AD. The proposed actions are intended to prevent MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.
We must receive comments on this SNPRM by December 8, 2014.
You may send comments by any of the following methods:
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You may examine the AD docket on the Internet at
For service information identified in this AD, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, CT, telephone (203) 383-4866, email address
Jeffrey Lee, Aviation Safety Engineer, Boston Aircraft Certification Office, 12 New England Executive Park, Burlington, MA 01803, telephone (781) 238-7161, fax (781) 238-7170, email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
On April 10, 2008, we issued a notice of proposed rulemaking (NPRM) (73 FR 21556, April 22, 2008) proposing to amend 14 CFR part 39 to add an AD for Sikorsky Aircraft Corporation Model S-61A, D, E, L, N, NM, R, and V; Croman Corporation Model SH-3H, Carson Helicopters, Inc. Model S-61L; Glacier Helicopters, Inc. Model CH-3E; Robinson Air Crane, Inc. Model CH-3E, CH-3C, HH-3C and HH-3E; and Siller Helicopters Model CH-3E and SH-3A helicopters. The NPRM proposed superseding AD 98-26-02 (63 FR 69177, December 16, 1998), which only applies to the affected Sikorsky model helicopters. The NPRM proposed retaining some of the requirements of AD 98-26-02 but also proposed determining a new retirement life for each MRS, removing from service any MRS with oversized dowel pin bores, and expanding the applicability to include the restricted category models that were inadvertently omitted from AD 98-26-02. The NPRM was prompted by the manufacturer's reevaluation of the retirement life for the MRS based on torque, ground-air-ground cycle, and fatigue testing. Those proposals were intended to prevent MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.
On April 16, 2013, we issued an SNPRM (78 FR 24363, April 25, 2013) that proposed to revise the NPRM based on our review of the data and the comments received. The SNPRM proposed retaining the proposals in the NPRM and extending the hours time-in-service (TIS) required for identifying the MRS as a repetitive external lift (REL) MRS to coincide with the nondestructive inspection (NDI) to prevent repeated disassembly of the shaft. Also, the action proposed to extend the time required to replace the MRS and revise calculations for establishing the retirement life.
Since we issued the previous SNPRM (78 FR 24364, April 25, 2013), we have determined a need to revise the proposed requirements again based on our review of the data and the comments received. In addition to retaining the proposals in the previous SNPRM, this SNPRM changes the “Costs of Compliance” to reflect an increased cost to replace an MRS. Also, paragraph (f)(1)(ii) of the previous SNPRM provided that where there is no record of the hours TIS on an MRS, you may substitute the “helicopter's hours TIS.” To clarify some of the wording for complying with the AD, this SNPRM proposes that you may substitute the “helicopter's hours TIS or the helicopter's transmission hours TIS if both the shaft and transmission were installed new at the same time.”
Because the proposed changes increase the economic burden on operators, we are reopening the comment period to allow the public to comment.
We gave the public the opportunity to comment on the previous SNPRM (78 FR 24366, April 25, 2013). The following presents the comments received from two commenters and the FAA's response to those comments.
One commenter requested that we increase the life limits of modified REL shafts from 30,000 cycles to no less than 100,000 cycles because the proposed limit of 30,000 REL lift cycles is unreasonable and contrary to the manufacturer's current fatigue evaluation practices. The commenter stated the limit of 30,000 REL cycles ignores the crack-free service history for the modified MRS as well as several variables in operation. The commenter also stated the proposed requirements would impose an unacceptable punitive cost because the actual cost to replace an MRS is much higher than the cost identified in the SNPRM (78 FR 24366, April 25, 2013).
We disagree. The commenter's proposed limit of 100,000 REL lift cycles is based on the working SN curve from fatigue testing that showed test specimen failure at 200,000 individual fatigue cycles. The data assumes that only the 103% torque event creates shaft damage and that one REL lift cycle is the same as one fatigue cycle. This assumption is not correct. One REL lift cycle includes many damaging fatigue cycles associated with a logging flight spectrum not accounted for by the commenter. The 30,000 REL lift cycle life limit is based upon the working SN curve from the fatigue tests and the fatigue damage determined by the logging flight loading spectrum. It is not only based on using the working SN curve cycle limit at the torque level chosen by the commenter. However, we agree with the commenter that the SNPRM does not reflect an accurate cost to replace an MRS. We have revised the “Costs of Compliance” section to reflect the current cost of the MRS.
The commenter also requested that the AD measure the shaft life limit by transmission TIS instead of the helicopter's TIS where no records exist for the main rotor shaft. The commenter states that the transmission TIS is a
We partially agree. The requested change of language would only be accurate where both the shaft and transmission were installed new at the same time. This language would not be accurate where the transmission had been replaced earlier than the shaft and thus had a lower life than the shaft. Therefore, we have revised paragraph (f)(1)(ii) to include both “helicopter's hours TIS” and “the helicopter's transmission hours TIS if both the shaft and transmission were installed new at the same time” as options where no records exist for the main rotor shaft.
The second commenter disagreed with determining pilot initial qualification by hours alone and suggested other methods. This comment appears to have been posted in error in this docket as it is not relevant to the SNPRM (78 FR 24366, April 25, 2013).
We are proposing this SNPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other helicopters of these same type designs. Certain changes described above expand the scope of the previous SNPRM (78 FR 24363, April 25, 2013) by increasing the economic burden. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.
Sikorsky has issued Customer Service Notice (CSN) No. 6135-10A and Sikorsky Service Bulletin (SB) No. 61B35-53A, both dated April 19, 2004. The CSN and the SB apply to Model S-61L, N, and NM (serial number (S/N) 61454), and R series transport category helicopters; and S-61A, D, E, and V series restricted category helicopters. The CSN specifies replacing the planetary assembly and MRS assembly attaching hardware with high strength hardware. The CSN also specifies reworking the dowel retainer to increase hole chamfer and related countersink diameters. The SB specifies replacing the existing planetary matching plates with new steel matching plates during overhaul at the operator's discretion.
Also, Sikorsky has issued ASB No. 61B35-69, dated April 19, 2004 (ASB 61B35-69), which supersedes ASB 61B35-68B. ASB 61B35-69 provides updated procedures for determining REL and Non-REL status, assigns new REL and Non-REL MRS retirement lives, and provides a method for marking the REL MRS.
This proposed AD would retain some of the requirements from AD 98-26-02 (63 FR 69177, December 16, 1998):
• Recording the number of external lift cycles (lift cycles) performed and the hours TIS.
• Determining whether the MRS is REL or Non-REL.
• Marking the REL MRS at the time of the NDI.
• Conducting an NDI for shafts used in REL operations and replacing it if there is a crack.
The proposed AD would also require the following:
• When recording the number of hours TIS, using either the helicopter's hours TIS or the helicopter's transmission hours TIS if both the shaft and transmission were installed new at the same time where there is no record of the hours TIS on an individual MRS.
• Calculating a 250-hour TIS moving average of lift cycles to determine whether the MRS is an REL MRS.
• Determining a new retirement life for each MRS based on hours TIS and lift cycles.
• Removing from service any MRS with oversized dowel pin bores.
• Extending the retirement life of modified REL MRS from 2,200 hours TIS to 5,000 hours TIS but also implementing lift-cycle retirement lives.
• Allowing the use of Revision A service information to modify the REL MRS for life limit determination.
We estimate that this proposed AD would affect 60 helicopters of U.S. registry. We estimate that operators may incur the following costs in order to comply with this proposed AD: It would take about 2.2 work hours to NDI an REL MRS at $85 per work hour plus a $50 consumable cost, for a total cost of $237 per helicopter and $14,220 for the U.S. fleet. It would take 2.2 work hours at $85 per work hour to replace an MRS, and parts would cost $81,216, for a total cost of $81,403 per helicopter.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model S-61A, D, E, L, N, NM (serial number (S/N) 61454), R, V, CH-3C, CH-3E, HH-3C, HH-3E, SH-3A, and SH-3H helicopters with main rotor shaft (MRS), part number (P/N) S6135-20640-001, S6135-20640-002, or S6137-23040-001, installed, certificated in any category.
This AD defines the unsafe condition as MRS structural failure, loss of power to the main rotor, and subsequent loss of control of the helicopter.
This AD supersedes AD 98-26-02 (63 FR 69177, December 16, 1998), Amendment 39-10943, Docket No. 96-SW-29-AD.
We must receive comments by December 8, 2014.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 10 hours time-in-service (TIS):
(i) Create a component history card or equivalent record for each MRS.
(ii) If there is no record of the hours TIS on an individual MRS, substitute the helicopter's hours TIS or the helicopter's transmission hours TIS if both the shaft and transmission were installed new at the same time.
(iii) If the record of external lift cycles (lift cycles) on an individual MRS is incomplete, add the known number of lift cycles to a number calculated by multiplying the number of hours TIS of the individual MRS by the average lift cycles calculated according to the instructions in Section I of Appendix I of this AD or by a factor of 13.6, whichever is higher. An external lift cycle is defined as a flight cycle in which an external load is picked up, the helicopter is repositioned (through flight or hover), and the helicopter hovers and releases the load and departs or lands and departs.
(iv) At the end of each day's operations, record the number of lift cycles performed and the hours TIS.
(2) Within 250 hours TIS, determine whether the MRS is a repetitive external lift (REL) or non-REL MRS.
(i) Calculate the first moving average of lift cycles by following the instructions in Section I of Appendix I of this AD.
(A) If the calculation results in 6 or more lift cycles per hour TIS, the MRS is an REL-MRS.
(B) If the calculation results in less than 6 lift cycles per hour TIS, the MRS is a Non-REL MRS.
(ii) If the MRS is a Non-REL MRS based on the calculation performed in accordance with paragraph (f)(2)(i), thereafter at intervals of 50 hour TIS, recalculate the average lift cycles per hour TIS by following the instructions in Section II of Appendix 1 of this AD.
(iii) Once an MRS is determined to be an REL MRS, you no longer need to perform the 250-hour TIS moving average calculation, but you must continue to count and record the lift cycles and number of hours TIS.
(iv) If an MRS is determined to be an REL MRS, it remains an REL MRS for the rest of its service life and is subject to the retirement times for an REL MRS.
(3) Within 1,100 hours TIS:
(i) Conduct a Non-Destructive Inspection for a crack on each MRS. If there is a crack in an MRS, before further flight, replace it with an airworthy MRS.
(ii) If an MRS is determined to be an REL MRS, identify it as an REL MRS by etching “REL” on the outside diameter of the MRS near the part S/N by following the Accomplishment Instructions, paragraph 3.C., of Sikorsky Alert Service Bulletin (ASB) 61B35-69, dated April 19, 2004.
(4) Replace each MRS with an airworthy MRS on or before reaching the revised retirement life as follows:
(i) For an REL MRS that is not modified by following Sikorsky Customer Service Notice (CSN) 6135-10, dated March 18, 1987, and ASB No. 61B35-53, dated December 2, 1981 (unmodified REL MRS), the retirement life is 30,000 lift cycles or 1,500 hours TIS, whichever occurs first.
(ii) For an REL MRS that is modified by following Sikorsky CSN 6135-10, dated March 18, 1987, and Sikorsky ASB No. 61B35-53 dated December 2, 1981, or CSN 6135-10A, Revision A, and ASB 61B35-53A, Revision A, both dated April 19, 2004 (modified REL MRS), the retirement life is 30,000 lift cycles or 5,000 hours TIS, whichever occurs first.
(iii) For a non-REL MRS, the retirement life is 13,000 hours TIS.
(5) Establish or revise the retirement lives of the MRS as indicated in paragraphs (f)(4)(i) through (f)(4)(iii) of this AD by recording the new or revised retirement life on the MRS component history card or equivalent record.
(6) Within 50 hours TIS, remove from service any MRS with oversized (0.8860” or greater diameter) dowel pin bores.
(1) The Manager, Boston Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to Jeffrey Lee, Aviation Safety Engineer, Boston Aircraft Certification Office, 12 New England Executive Park, Burlington, MA 01803, telephone (781) 238-7161, fax (781) 238-7170, email
(2) For operations conducted under 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
(1) Sikorsky Aircraft Corporation issued an All Operators Letter (AOL) CCS-61-AOL-04-0005, dated May 18, 2004, with an example and additional information about tracking cycles and the moving average procedure. This AOL is not incorporated by reference but contains additional information about the subject of this AD.
(2) The Overhaul and Repair Instruction (ORI) Number 6135-281, Part B, Step 5, and ORI 6137-041, Section III, Oversize Dowel Pin Bore Repair and identified on the flange as TS-281 or TS-041-3, which is not incorporated by reference, contains additional information about the subject of this AD.
(3) For more information about the AOL or the ORI, contact Sikorsky Aircraft Corporation, Attn: Manager, Commercial Technical Support, mailstop s581a, 6900 Main Street, Stratford, CT, telephone (203) 383-4866, email address
The first moving average calculation is performed on the MRS assembly when the external lift component history card record reflects that the MRS assembly has reached its first 250 hours TIS. To perform the calculation, divide the total number of lift cycles performed during the first 250 hours TIS by 250. The result will be the first moving average calculation of lift cycles per hour TIS.
Subsequent moving average calculations are performed on the MRS assembly at intervals of 50 hour TIS after the first moving average calculation. Subtract the total number of lift cycles performed during the first 50-hour TIS interval used in the previous moving average calculation from the total number of lift cycles performed on the MRS assembly during the previous 300 hours TIS. Divide this result by 250. The result will be the next or subsequent moving average calculation of lift cycles per hour TIS.
Assume the total number of lift cycles for the first 50 hour TIS interval used in the previous moving average calculation = 450 lift cycles and the total number of lift cycles for the previous 300 hours TIS = 2700 lift cycles. The subsequent moving average of lift cycles per hour TIS = (2700 − 450) divided by 250 = 9 lift cycles per hour TIS.
Joint Aircraft Service Component (JASC) Code: 6320, Main Rotor Gearbox.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace at Edgeley, ND. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAP) at Edgeley Municipal Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport.
Comments must be received on or before November 24, 2014.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2014-0537/Airspace Docket No. 13-AGL-38, at the beginning of your comments. You may also submit comments through the Internet at
Raul Garza, Jr., Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: 817-321-7654.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2014-0537/Airspace Docket No. 13-AGL-38.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Edgeley Municipal Airport, Edgeley, ND, to accommodate new standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9Y, dated August 6, 2014 and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish controlled airspace at Edgeley Municipal Airport, Edgeley, ND.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Edgeley Municipal Airport.
Bureau of Indian Affairs, Interior.
Proposed rule; Reopening of comment period.
This notice announces that the Department will accept comments on the proposed rule governing rights-of-way on Indian land until November 3, 2014.
Comments on this rule must be received by November 3, 2014.
You may submit comments by any of the following methods:
•
•
•
Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680;
On June 17, 2014, we published a proposed rule to comprehensively update and streamline the process for obtaining BIA grants of rights-of-way on Indian land.
Please note that none of the following will be considered or included in the docket for this rulemaking: Comments received after November 3, 2014; comments sent to an address other than those listed above; or anonymous comments.
The proposed rule, frequently asked questions, and other information are online at:
In proposed rule document 2014-23061 beginning on page 59168 in the issue of Wednesday, October 1, 2014, make the following correction:
In § 86.6, on page 59172, in the third column, between the twelfth and thirteenth lines, insert the following text:
(ii) Individuals with a prior DoD affiliation must also complete an IRC, which includes an installation law enforcement check, drug and alcohol records check, and a check of the Family Advocacy Program (FAP) records for a minimum of 2 years before the date of the application.
(3)
(i) In accordance with 42 U.S.C. 13041, complete a CNACI, which includes an FBI criminal history background check conducted through the Criminal Justice Information Services Division of the FBI and SCHR checks through State repositories of all States that a provider or contractor or prospective provider or contractor lists as current and former residences in an employment application. Results of an advanced FBI fingerprint check must be provided before completion of the full CNACI. Results for contractors may be used to determine employment under LOSS.
(ii) Individuals with a prior DoD affiliation must also complete an IRC, including an installation law enforcement check, drug and alcohol records check, and a check of the FAP records for a minimum of 2 years before the date of the application.
(4)
(i) In accordance with 42 U.S.C. 13041, only an FBI advanced fingerprint check is required for criminal history background checks for specified volunteers and persons 18 years of age or older residing in an FCC, foster, or respite care home.
(ii) Individuals with a prior DoD affiliation must also complete an IRC to include: an installation law enforcement
(5)
(c) Criteria for Disqualification Based on Results on Criminal History Background Checks. The ultimate decision to determine how to use information obtained from the criminal history background checks in selection for positions involving the care, treatment, supervision, or education of children must incorporate a common sense decision based upon all known facts. Adverse information is evaluated by the DoD Component who is qualified at the appropriate level of command in interpreting criminal history background checks. All information of record both favorable and unfavorable will be assessed in terms of its relevance, recentness, and seriousness. Likewise, positive mitigating factors should be considered. Final suitability decisions shall be made by that commander or designee. Criteria that will result in disqualification of an applicant require careful screening of the data. A disqualifying event may be the basis for a nonselection, withdrawal of a tentative offer of employment, ineligibility for facility access, removal from a contract, a suitability action under 5 CFR part 731, a probationary termination, an adverse action, or other appropriate action.
(1)
(i) That the individual has been convicted in either a civilian or military court (to include any general, special or summary court-martial conviction) or received non-judicial punishment (under Article 15 or chapter 47 of Title 10, U.S.C., also known and referred to in this instruction as “the Uniform Code of Military Justice (UCMJ)” (Reference (j) for any of the following:
(A) A sexual offense.
(B) Any criminal offense involving a child victim.
(C) A felony drug offense.
(ii) That the individual has been held to be negligent in a civil adjudication or administrative proceeding concerning the death or serious injury to a child or dependent person entrusted to the individual's care.
(d)
(1)
(i) A FAP record indicating that the individual met criteria for child abuse or neglect or civil adjudication that the individual committed child abuse or neglect.
(ii) Evidence of an act or acts by the individual that tend to indicate poor judgment, unreliability, or untrustworthiness in providing child care services.
Environmental Protection Agency.
Proposed rule.
Florida has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). These changes correspond to certain Federal rules promulgated between July 1, 2007 and June 30, 2009, and July 1, 2010 and June 30, 2011 (also known as RCRA Clusters XVIII, XIX and XXI). With this proposed rule, EPA is proposing to grant final authorization to Florida for these changes. Along with this proposed rule, EPA is publishing an immediate final rule in the “Rules and Regulations” section of today's
Send your written comments by November 7, 2014.
Submit your comments, identified by Docket ID No. EPA-R04-RCRA-2012-0179, by one of the following methods:
•
•
•
•
•
Please see the immediate final rule in the “Rules and Regulations” section of today's
Anita K. Shipley, Permits and State Programs Section, RCRA Programs and Materials Management Branch, RCRA Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303; telephone number: (404) 562-8466; fax number: (404) 562-9964; email address:
For additional information, please see the immediate final rule published in the “Rules and Regulations” section of today's
Federal Communications Commission.
Proposed rule.
This document requests comments on a Petition for Rule Making filed by Chris Samples Broadcasting, Inc, licensee of Station KXDJ(FM), Channel 252C2, Spearman, Texas, proposing to substitute Channel 221A for vacant Channel 252A at Silverton, Texas. A staff engineering analysis indicates that Channel 221A can be allotted to Silverton, Texas consistent with the minimum distance separation requirements of the Commission's Rules with a site restriction located 7.8 kilometers (4.9 miles) east of Silverton. The reference coordinates are 34-28-15 NL and 101-13-09 WL. The purpose of the channel substitution is to accommodate the “hybrid” application requesting to upgrade the facilities of Station KXDJ(FM) from Channel 252C2 to Channel 252C1 at Spearman, Texas, File No. BPH-20140519AHY.
Comments must be filed on or before November 10, 2014, and reply comments on or before November 25, 2014.
Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner as follows: Dan J. Alpert, Esq., The Law Office of Dan J. Alpert, 2120 N. 21st Rd., Arlington, VA 22201.
Rolanda F. Smith, Media Bureau, (202) 418-2700.
This is a synopsis of the Commission's
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336 and 339.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act) to establish restrictions on the use of fish aggregating devices (FADs) by U.S. purse seine vessels in the western and central Pacific Ocean. The restrictions would include a prohibition on the use of FADs during January and February and July through September of 2015, and a limit of 3,061 purse seine sets that may be made on FADs in 2015. This action is necessary for the United States to implement provisions of a conservation and management measure (CMM) adopted by the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC) and to satisfy the obligations of the United States under the Convention on the Conservation and Management of Highly Migratory Fish
Comments must be submitted in writing by October 28, 2014.
You may submit comments on this document, identified by NOAA-NMFS-2014-0115, and the regulatory impact review (RIR) prepared for this proposed rule, by either of the following methods:
• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
• Mail: Submit written comments to Michael D. Tosatto, Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
An initial regulatory flexibility analysis (IRFA) prepared under authority of the Regulatory Flexibility Act is included in the Classification section of the
Copies of the RIR, and the Supplemental Environmental Assessment (SEA) prepared for National Environmental Policy Act (NEPA) purposes, are available at
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see address above) and by email to
Tom Graham, NMFS PIRO, 808-725-5032.
A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the western and central Pacific Ocean (WCPO), can be found on the WCPFC Web site at:
As a Contracting Party to the Convention and a Member of the WCPFC, the United States is obligated to implement the decisions of the WCPFC. The WCPFC Implementation Act (16 U.S.C. 6901
At its Tenth Regular Session, in December 2013, the WCPFC adopted CMM 2013-01, “Conservation and Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean.” CMM 2013-01 is the most recent in a series of CMMs for the management of tropical tuna stocks under the purview of the WCPFC. It is a successor to CMM 2012-01, adopted in December 2012. These and other CMMs are available at:
CMM 2013-01's stated general objective is to ensure that the stocks of bigeye tuna (
CMM 2013-01 went into effect February 4, 2014, and is generally applicable for the 2014-2017 period. Some of its provisions apply to specific periods within the 2014-2017 timeframe, and some of its provisions are contingent on whether the WCPFC makes certain decisions in the future. The CMM includes provisions for purse seine vessels, longline vessels, and other types of vessels that fish for HMS. The CMM's provisions for purse seine vessels include limits on the allowable number and fishing capacity of vessels, limits on the allowable level of fishing effort, restrictions on the use of FADs, requirements to retain all bigeye tuna, yellowfin tuna, and skipjack tuna except in specific circumstances, and requirements to carry vessel observers. This proposed rule would implement the FAD restrictions for purse seine vessels, and only for 2015. The other provisions of the CMM, and the FAD restrictions for years subsequent to 2015, would be implemented in other rulemakings.
CMM 2013-01 requires CCMs to prohibit their purse seine vessels from setting on FADs in EEZs and on the high seas in the Convention Area between the latitudes of 20° North and 20° South from July 1 through September 30 of each year. For 2014, the CMM further requires CCMs to either prohibit setting on FADs in October or limit the total number of FAD sets in the calendar year by the CCM's purse seine fleet to
For 2015 through 2017, CMM 2013-01 maintains the prohibition on setting FADs during the months of July-September, so this proposed rule would prohibit the use of FADs in the Convention Area—between the latitudes of 20° North and 20° South from July 1 through September 30, 2015. In addition, CCMs are required to either: (1) Prohibit their purse seine vessels from setting on FADs in January and February in combination with limiting the number of FAD sets by their purse seine vessels to specified levels (for U.S. purse seine vessels, the specified level is 3,061 FAD sets per year); or (2) limit the number of FAD sets by their purse seine vessels to specified levels (for U.S. purse seine vessels, the specified level is 2,202 per year). In other words, for each calendar year, the United States has the option of a five-month FAD closure in combination with a 3,061 FAD set limit, or a three-month FAD closure in combination with a 2,202 FAD set limit. This proposed rule would implement the former option for 2015—that is, a prohibition on FAD-setting in January and February and July through September of 2015, in combination with a limit of 3,061 FAD sets for 2015. However, for the reason described below, these requirements, if adopted in a final rule, would be made contingent on NMFS issuing a subsequent notice in the
Paragraph 15 of CMM 2013-01 states that the FAD-related requirements starting in 2015 (apart from the July-September FAD closure) shall only take effect when the Commission has adopted, at its Eleventh Regular Session, “. . . arrangements to ensure that this CMM, consistent with the Convention Article 30 2(c), does not result in transferring, directly or indirectly, a disproportionate burden of conservation action onto SIDS [small island developing States].” Thus, upon completion of the Eleventh Regular Session of the WCPFC, which is scheduled to occur in December 2014, NMFS would determine whether this criterion has been met, and if it finds that it has, NMFS would issue a
NMFS proposes to implement the first of the two FAD-related options in CMM 2013-01 because it believes it is the more cost-effective of the two options, taking into account the objectives of the CMM, the expected economic impacts on U.S. fishing operations and the nation as a whole, and expected environmental and other effects. The expected environmental and economic effects of both options are described in the SEA, RIR, and IRFA prepared for this proposed action.
Under this proposed rule, the definition of a FAD for the purpose of the FAD restrictions would remain as it is in existing regulations (50 CFR 300.211): It means “any artificial or natural floating object, whether anchored or not and whether situated at the water surface or not, that is capable of aggregating fish, as well as any object used for that purpose that is situated on board a vessel or otherwise out of the water. The definition of FAD does not include a vessel.” Although the definition of a FAD does not include a vessel, some of the proposed prohibitions apply to setting on fish that have aggregated in association with a vessel, as described further below.
If NMFS determines that the proposed limit of 3,061 FAD sets is expected to be reached by a specific future date in 2015, NMFS would issue a notice in the
The specific activities that would be prohibited in the Convention Area between the latitudes of 20° North and 20° South during the proposed FAD closure periods (i.e., January and February and July through September, as well as any period after which the FAD set limit has been reached, through December 31, 2015) would remain as they are in existing regulations (50 CFR 300.223(b)): It would be prohibited to:
(1) Set a purse seine around a FAD or within one nautical mile of a FAD;
(2) Set a purse seine in a manner intended to capture fish that have aggregated in association with a FAD or a vessel, such as by setting the purse seine in an area from which a FAD or a vessel has been moved or removed within the previous eight hours, or setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD or a vessel;
(3) Deploy a FAD into the water;
(4) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea, except that a FAD may be inspected and handled as needed to identify the FAD, identify and release incidentally captured animals, un-foul fishing gear, or prevent damage to property or risk to human safety, and a FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water; and
(5) From a purse seine vessel or any associated skiffs, other watercraft or equipment, do any of the following, except in emergencies as needed to prevent human injury or the loss of human life, the loss of the purse seine vessel, skiffs, watercraft or aircraft, or environmental damage: Submerge lights under water; suspend or hang lights over the side of the purse seine vessel, skiff, watercraft or equipment; or direct or use lights in a manner other than as needed to illuminate the deck of the purse seine vessel or associated skiffs, watercraft or equipment, to comply with navigational requirements, and to ensure the health and safety of the crew.
For the purpose of estimating and projecting FAD sets with respect to the proposed limit of 3,061 FAD sets, NMFS would count FAD sets using the best information available. Under existing requirements, vessel owners and operators must maintain in their catch report forms (logbooks known as Regional Purse Seine Logsheets, or RPLs) information about the type of each set that is made, including whether it was made on a FAD. However, NMFS does not receive that logbook information until after the vessel returns to port, and it takes additional time for NMFS to review the information and make it available for analysis. Consequently, it would be difficult for NMFS to estimate and project FAD sets with respect to the proposed limit in a timely and reliable manner. For that reason, this proposed rule would establish an additional reporting requirement for U.S. purse seine vessel owners and operators. Within 24 hours of the end of each day while the vessel is at sea in the Convention Area, the
The Administrator, Pacific Islands Region, NMFS, has determined that this proposed rule is consistent with the WCPFC Implementation Act and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the
Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide.
This proposed rule would apply to owners and operators of U.S. purse seine vessels used for fishing in the Convention Area. The number of affected vessels is the number licensed under the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (South Pacific Tuna Treaty, or SPTT). The current number of licensed vessels is 40, which is the maximum number of licenses available under the SPTT (excluding joint-venture licenses, of which there are five available under the SPTT, none of which have ever been applied for or issued).
Based on (limited) available financial information about the affected fishing vessels and the SBA's small entity size standards for commercial finfish harvesters, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses are small entities. As indicated above, there are currently 40 purse seine vessels in the affected purse seine fishery. Neither gross receipts nor ex-vessel price information specific to the 40 vessels are available to NMFS, so average annual receipts for each of the 40 vessels during the last 3 years for which reasonably complete data are available (2010-2012) were estimated as follows: The vessel's reported retained catches of each of skipjack tuna, yellowfin tuna, and bigeye tuna in each year was multiplied by an indicative Asia-Pacific regional cannery price for that species and year (developed by the Pacific Islands Forum Fisheries Agency and available at
The proposed rule would establish restrictions on the use of FADs and an additional reporting requirement, as described earlier in the
The proposed prohibitions on setting on FADs and on fish aggregating in association with fishing vessels (collectively called “FAD prohibitions” or “FAD restrictions;” note that the data on FAD sets presented here do not include sets made on fish aggregating in association with fishing vessels, but the number of the latter type of sets is small) in January-February and July-September of 2015, and for the remainder of 2015 if and after the limit of 3,061 FAD sets is reached, would substantially constrain the manner in which purse seine fishing could be conducted during those periods; vessels would be able to set only on free, or “unassociated,” schools.
The likelihood of reaching the 3,061 FAD set limit depends on the amount of fishing effort that will be available to the fleet in 2015. This will largely depend on outcome of the ongoing renegotiation of the South Pacific Tuna Treaty, which cannot be predicted. As an indicative example, if the fleet makes 51 percent of its sets on FADs during periods when FAD sets are allowed, as it did in 2010-2011, and if fishing effort is evenly distributed through the year, then the FAD set limit would be reached if the total number of sets made in 2015 were to exceed 10,300. Assuming that approximately one set can be made per fishing day, on average (the ratio in 2010-2011 was approximately 0.93 sets per fishing day), that level is slightly greater than the total number of sets available to the fleet in 2014. Thus, the likelihood of the 3,061 FAD set limit being reached appears to be moderate if the total fishing effort available in 2015 is similar to the total fishing effort available in 2014.
The costs associated with the FAD restrictions cannot be quantitatively estimated, but the fleet's historical use of FADs can help give a qualitative indication of the costs. In the years 1997-2010, the proportion of sets made on FADs in the U.S. purse seine fishery ranged from less than 30 percent in some years to more than 90 percent in others. Thus, the importance of FAD sets in terms of profits appears to be quite variable over time, and is probably a function of many factors, including fuel prices (unassociated sets involve more searching time and thus tend to bring higher fuel costs than FAD sets) and market conditions (e.g., FAD fishing, which tends to result in greater catches of lower-value skipjack tuna and smaller yellowfin tuna and bigeye tuna than unassociated sets, might be more attractive and profitable when canneries are not rejecting small fish). Thus, the costs of complying with the FAD restrictions would depend on a variety of factors.
In 2010-2011, the last 2 years for which complete data are available and for which there was 100 percent observer coverage, the U.S. WCPO purse seine fleet made about 38 percent of its sets on FADs. During the months when setting on FADs was allowed, the percentage was about 51 percent. The fact that the fleet has made such a substantial portion of its sets on FADs indicates that prohibiting the use of
To help mitigate these impacts, vessel operators might choose to schedule their routine vessel and equipment maintenance during the FAD prohibition periods. Similarly, the competitive FAD set limit could give vessel operators an incentive to fish relatively hard early in the year when FAD sets are allowed in order to take best advantage of the collective limit before it is reached. Such a “race-to-fish” effect could cause vessel operators to forego vessel maintenance in favor of fishing or to fish in weather or ocean conditions that they otherwise would not. This could bring costs in terms of the health and safety of the crew as well as the economic performance of the vessel. It also is conceivable that some vessels might choose not to fish at all during the prohibition periods rather than fish without the use of FADs. Observations of the fleet's behavior in 2009-2012 do not suggest that any of these responses occurred to an appreciable degree. The proportion of the fleet that fished during the two- and three-month FAD prohibition periods of 2009-2012 did not appreciably differ from the proportion that fished during the same months in the years 1997-2008, when no FAD prohibition periods were in place. However, the five-month FAD closure and 3,061 FAD set limit proposed in this rule would be more severe than the two- and three-month closures of 2009-2012, so it is difficult to predict how vessel owners and operators would respond.
This proposed additional reporting requirement is part of a proposed collection of information subject to approval by the Office of Management and Budget (OMB) under the PRA. Within 24 hours of the end of each day while a purse seine vessel is at sea in the Convention Area, the owner or operator would have to report to NMFS how many sets were made on FADs during that day. The report would be submitted to NMFS via email or other electronic means. The communication costs for the additional reporting requirement are expected to be approximately $1 per report. Each report would require approximately 10 person-minutes to complete and submit. Assuming labor costs of about $26 per person-hour, and, based on the fleet's fishing patterns in 2010-2011, approximately 255 days at sea per vessel per year, the total annual communication costs for a vessel would be about $255, and the total annual labor costs would be about $1,105, for a total annual cost of about $1,360.
There would be no disproportionate economic impacts between small and large entities operating vessels as a result of this proposed rule. Furthermore, there would be no disproportionate economic impacts based on vessel size, gear, or homeport.
NMFS has not identified any Federal regulations that duplicate, overlap with, or conflict with the proposed regulations, with the exception of a Federal regulation that duplicates to some extent the proposed daily FAD reporting requirement. Existing regulations at 50 CFR 300.34 require that a record of catch, effort and other information must be maintained on board vessels licensed under the SPTA, on catch report forms known as Regional Purse Seine Logsheets, or RPLs. The RPLs must be submitted to NMFS within two days of a vessel reaching port. The RPLs include the information that would be required to be reported under this proposed rule; that is, how many FAD sets were made on a given day. As explained earlier in the preamble, the timing of the RPL requirement is such that it would not provide NMFS with the information it needs to estimate and project FAD sets with respect to the proposed limit in a timely and reliable manner. For that reason, NMFS is proposing a reporting requirement that is duplicative in terms of the substance—but not the timing—of one element of the existing RPL reporting requirement.
NMFS considered two alternatives to the proposed FAD restrictions, and one alternative to the proposed daily reporting requirement.
The first alternative for the FAD restrictions would establish a three-month FAD closure period (instead of five months) and a FAD set limit of 2,202 (instead of 3,061) for 2015. The months of the FAD closure period would be July through September. This alternative is based on the second of the two options available to the United States under CMM 2013-01, as described above in the
The second alternative for the FAD restrictions would be the same as the proposed restrictions except that it would not be prohibited to set on fish that have aggregated in association with a vessel, provided that the vessel is not used in a manner to aggregate fish (versus a FAD, which by definition does not include a vessel). This would be less restrictive and thus presumably less costly to affected purse seine fishing businesses than the proposed requirements. The number of such sets made historically has been relatively small, averaging about four per year for the entire fleet from 1997 through 2010, according to data recorded by vessel operators in logbooks (examination by NMFS of observer data from selected years indicates a somewhat higher number than the number reported by vessel operators, so vessel logbook data might underestimate the actual number, but the number is still small in comparison to FAD sets). Therefore, the degree of relief in compliance costs of allowing such sets for four months each year would be expected to be relatively small. NMFS believes that this alternative would not serve CMM 2013-01's objective of reducing the fishing mortality rates of bigeye tuna and young tunas through seasonal prohibitions on the use of FADs as well as would the proposed rule. For that reason, this alternative is not preferred.
The alternative for the daily FAD reporting requirement would be the same as the proposed requirement except that it would apply only
The alternative of taking no action at all is not preferred because it would fail to accomplish the objective of the WCPFC Implementation Act or satisfy the international obligations of the United States as a Contracting Party to the Convention.
This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public reporting burden for the daily report of how many FAD sets were made is estimated to average 10 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.
Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:
16 U.S.C. 6901
(g)
(rr) Fail to submit, or ensure submission of, a daily FAD report as required in § 300.218(g).
(b)
(i) Set a purse seine around a FAD or within one nautical mile of a FAD.
(ii) Set a purse seine in a manner intended to capture fish that have aggregated in association with a FAD or a vessel, such as by setting the purse seine in an area from which a FAD or a vessel has been moved or removed within the previous eight hours, or setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD or a vessel.
(iii) Deploy a FAD into the water.
(iv) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea, except that:
(A) A FAD may be inspected and handled as needed to identify the FAD, identify and release incidentally captured animals, un-foul fishing gear, or prevent damage to property or risk to human safety; and
(B) A FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water.
(v) From a purse seine vessel or any associated skiffs, other watercraft or equipment, do any of the following, except in emergencies as needed to prevent human injury or the loss of human life, the loss of the purse seine vessel, skiffs, watercraft or aircraft, or environmental damage:
(A) Submerge lights under water;
(B) Suspend or hang lights over the side of the purse seine vessel, skiff, watercraft or equipment, or;
(C) Direct or use lights in a manner other than as needed to illuminate the deck of the purse seine vessel or associated skiffs, watercraft or equipment, to comply with navigational requirements, and to ensure the health and safety of the crew.
(2) The requirements of paragraph (b)(1) of this section shall apply:
(i) From July 1 through September 30, 2015; and
(ii) During each the periods described below, but only after NMFS has issued a notice in the
(A) From January 1 through February 28, 2015; and
(B) During any period specified in a
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of availability of fishery management plan amendment; request for comments.
The North Pacific Fishery Management Council (Council) has submitted Amendment 104 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). If approved, Amendment 104 to the FMP would designate six areas of skate egg concentration as Habitat Areas of Particular Concern (HAPC). Designating the six areas of skate egg concentration as HAPC in the Bering Sea and Aleutian Islands Management Area (BSAI) would highlight the importance of this essential fish habitat for conservation. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.
Written comments on Amendment 104 to the FMP must be received on or before 5 p.m., Alaska local time, on December 8, 2014.
You may submit comments, identified by NOAA-NMFS-2014-0059, by any of the following methods:
•
•
Electronic copies of Amendment 104 to the FMP and the Environmental Assessment (EA) prepared for this action are available from the Alaska Region NMFS Web site at
John V. Olson, 907-271-1508.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit proposed amendments to a fishery management plan to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that, upon receiving an FMP amendment, NMFS immediately publish in the
Amendment 104 to the FMP was unanimously adopted by the Council in February 2013. If approved by the Secretary, Amendment 104 to the FMP would amend: (1) Section 4.2.3.2 of the FMP to add six areas of skate egg concentration as HAPC; (2) section 3.5.2.4.2 of the FMP to note that fishing would not be prohibited within the HAPC; and (3) Appendix B of the FMP to include coordinates and maps that designate the HAPC.
HAPC are geographic sites that fall within the distribution of EFH for federally managed species. HAPC are areas of special importance that may require additional protection from the adverse effects of fishing. Regulations implementing EFH provisions provide a means for the Council to identify HAPC in FMPs (50 CFR 600.815(a)(8)). The designation of HAPC does not require the implementation of regulations to limit fishing within HAPC unless such measures are determined to be necessary. Regulations implementing EFH provisions require that a Council and NMFS act to prevent, mitigate, or minimize any adverse effects from fishing, to the extent practicable, if there is evidence that a fishing activity adversely affects EFH in a manner that is more than minimal and not temporary in nature (50 CFR 600.815(a)(2)(ii)). Because HAPC is a type of EFH, these regulatory provisions also apply to HAPC.
In 2007, the Council defined criteria to designate a specific type of EFH as HAPC. The Council determined that HAPC must be specific geographic sites that are rare (defined as uncommon habitat that occurs in discrete areas), and must meet at least one of three other considerations: Provide an important ecological function; be sensitive to human-induced degradation; or be stressed by development activities. These criteria are described in Section 4.2.3 of the FMP and are consistent with regulations that define the factors a Council should consider in designating HAPC (50 CFR 600.815(a)(8)). Based on these criteria, the Council defined a specific habitat type, areas of skate egg concentration, more commonly known as “skate nurseries”, as an appropriate habitat type for possible designation as HAPC.
In 2010, the Council received a proposal from NMFS's Alaska Fisheries Science Center to designate several areas of skate egg concentration as HAPC in the BSAI. Skates are long-lived, slow to mature, and produce relatively few young (like other elasmobranch fish such as sharks). During each reproductive season, a reproducing skate deposits several egg cases. Depending on the species, a single egg case can hold from one to four individual skate embryos, and development can take up to 3 years. At sites where skate eggs are deposited, several year classes and species of skates can be present. Because the egg cases are deposited on the sea floor in soft substrates in small distinct sites, they may be vulnerable to impacts from
In 2011 and 2012, the Council reviewed geographic areas where skate egg concentrations occur for possible designation as HAPC. The Council also considered possible management measures that would limit fishing activities within these proposed HAPC. Sections 2.2, 2.4, and 2.5 of the EA describe the process the Council uses to designate HAPC, the proposed skate HAPC, and the methods used to defined the geographic boundaries of the skate HAPC considered by the Council (see
In February 2013, the Council unanimously adopted Amendment 104 to the FMP (Alternative 2 in the EA). Amendment 104 to the FMP would designate as HAPC six areas where relatively high concentrations of skate eggs occur in the eastern Bering Sea for several skate species (family
The six areas of skate egg concentration proposed as HAPC are rare, encompassing approximately 82 square nautical miles of habitat, or less than 0.1 percent of the total area of the BSAI. These proposed HAPC are discrete areas near the shelf/slope break with unique abiotic features (e.g., substrate composition) that serve as important spawning and embryonic development areas for skate species. At each of these six proposed HAPC, scientists repeatedly observed a relatively high occurrence of skate egg cases during stock assessment surveys and from fishery observer samples collected from vessels deploying fishing gear that contacted the sea floor (e.g., non-pelagic trawl gear). Section 3.4 of the EA provides additional detail on skate biology and the rarity of areas of skate egg concentrations. Section 3.4 of the EA describes the important ecological functions skates perform primarily as predators for a wide range of fish species, but also as prey for a variety of marine mammal and fish species.
Section 3.5.4 of the EA indicates areas of skate egg concentrations that may also be sensitive to human-induced degradation through the impact of fishing gear. However, the best available scientific information does not indicate that human-induced degradation (e.g., adverse effects from fishing) is occurring. Because human-induced degradation from fishing or other activities is not observed currently, the Council did not consider this HAPC designation criterion as having been met.
Amendment 104 would amend the FMP to designate six areas of skate egg concentration as HAPC without any additional associated regulatory measures. The Council considered an alternative (Alternative 3) that would limit fishing within the proposed HAPC before adopting Amendment 104. Section 2.3 of the EA summarizes the factors the Council considered in making its recommendation to adopt Amendment 104 to the FMP. The Council determined that Amendment 104 to the FMP would designate all six areas of skate egg concentrations that meet the Council's HAPC criteria. The Council also determined that designating these HAPC would provide additional focus for the review and consultation on proposed activities (e.g, drilling, laying cables, seismic exploration, as well as fishing activities) that occur within these HAPC and could potentially affect these important areas of skate habitat.
The Council did not recommend regulations to limit fishing in the proposed HAPC because there is no evidence of adverse effects from fishing on skate populations within these HAPC that would need to be addressed through regulation. Section 3.5 of the EA provides additional information supporting this recommendation. Section 3.5 of the EA explains that the type of fishing gear used in the proposed HAPC is expected to have a minimal and temporary impact on skate habitat. Section 3.5 of the EA explains that fishing effort is limited or does not occur in four of the six HAPC, continued commercial fishing at the current rate and intensity would not be expected to alter the capacity of EFH within these HAPC to support healthy populations of skates over the long term, and no new information exists that indicates that fishing activities are adversely affecting skate egg deposition within these HAPC.
The Council also recommended that NMFS monitor the HAPC sites for changes in skate egg density and other potential effects of fishing, and incorporate the research and monitoring of skate species into the Council's annual research priority list. These recommendations can be considered and adopted by NMFS without amending the FMP or implementing regulations. These Council's recommendations are noted here to notify the public and to describe how NMFS intends to address the Council's recommendations.
NMFS intends to monitor the proposed HAPC sites by analyzing data collected through existing data sources such as from stock assessment surveys and fishery observers. This monitoring would inform the Council and NMFS when there are major changes in fishing effort in the HAPC and if there are any potential impacts to skate habitat within these HAPC. The results from this monitoring could be reported in the annual Ecosystem Stock Assessment and Fishery Evaluation report and as part of the EFH 5-Year review process. If through this monitoring NMFS and the Council learn that skate recruitment or overall biomass of a species has changed due to fishing impacts within the HAPC, the Council could initiate further action to restrict fishing activities within the HAPC. Incorporating the research and monitoring of skate species into the Council's annual research priority list would provide additional research focus on these HAPC. The Council noted that this research could help improve the understanding of skate populations, the importance of areas of skate egg concentration, and skate ecology and habitat. Section 3.3.2 of the EA provides additional information on how NMFS intends to address the Council's monitoring and research recommendations.
Public comments are being solicited on proposed Amendment 104 to the FMP through the end of the comment period stated (see
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request an extension and revision of a currently approved information collection under the Dairy Product Mandatory Reporting Program. The information collected supports the marketing of dairy products and is used to verify compliance with Federal milk marketing regulations.
Comments on this notice must be received by December 8, 2014, to be considered.
Under the Dairy Product Mandatory Reporting Program (7 CFR part 1170), various manufacturer reports are filed electronically on a weekly basis. USDA publishes composites of the information obtained to help industry members make informed marketing decisions regarding dairy products. The information is also used to establish minimum prices for Class III and Class IV milk under Federal milk marketing orders. Additional paper forms are filed by manufacturers on an annual basis to validate participation in the mandatory reporting program. USDA uses the information collected to verify compliance with applicable regulations.
Only authorized representatives of USDA, including AMS Dairy Program's regional and headquarters staff, have access to information provided on the forms.
Requesting public comments on the information collection and forms described below is part of the process to obtain approval through the Office of Management and Budget (OMB). Forms needing OMB approval are contained in OMB No. 0581-0274 and include forms for reporting cheddar cheese price, volume, and moisture content (DY-202 and DY-203); butter price and volume (DY-201); nonfat dry milk price and volume (DY-205); and dry whey price and volume (DY-204). Annual validation information is reported on Forms DA-230 and DA-230-S. Manufacturers and others who are required to file reports under this program must also maintain original records associated with the sale and storage of dairy products for two years and must make those records available to USDA upon request. Manufacturers who produce and market less than one million pounds of cheddar cheese, butter, nonfat dry milk, or dry whey are exempt from the reporting requirements for those products.
No changes have been made to the reporting forms. The estimated number of respondents who should file each form has decreased. Therefore, the total hours necessary to complete the forms has been decreased.
Information collection requirements included in this request for an extension are as follows:
Comments are invited on: (1) Whether the proposed collection of the information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) 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) 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 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.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Farm Service Agency, USDA.
Notice and request for comment.
The Farm Service Agency (FSA) will conduct pilot projects of limited scope and duration to evaluate processes and techniques that may improve the efficiency and effectiveness of the Farm Loan Programs (FLP) real estate loans (also referred to as “farm ownership loans”), operating loans, emergency loans, and administrative provisions, as required by the Agricultural Act of 2014 (the 2014 Farm Bill). This notice provides an opportunity for the public to provide comments for FSA to consider for pilot projects. FSA expects to conduct at least two to three pilot projects.
We will consider comments that we receive by November 7, 2014.
We invite you to submit comments on this notice. In your comment, include volume, date, and page number of this issue of the
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Comments will be available for viewing online at
Carrie Novak; phone: (202) 720-1643. Persons with disabilities who require alternative means for communication of information for this notice (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice).
FSA makes and services a variety of direct and guaranteed loans to farmers who are temporarily unable to obtain private commercial credit. FSA also provides direct loan customers with credit counseling and supervision to enhance their opportunity for success. FSA loan applicants are often beginning
FSA makes direct and guaranteed operating and farm ownership loans to eligible farmers and ranchers. Under its direct operating loan program, FSA also makes loans to youths to establish and operate income-producing projects of modest size in connection with their participation in 4-H clubs, Future Farmers of America, and similar organizations. Guaranteed loans are made through private lenders with a guarantee of up to 95 percent of the loss of principal and interest. Direct and guaranteed operating loans can be used to purchase livestock, equipment, feed, seed, and other material essential to a farm or ranch operation.
Direct and guaranteed farm ownership loan funds may be used to purchase land, construct buildings, or make farm improvements. Guaranteed operating and farm ownership loans may also be used to refinance debt. FSA also provides assistance to beginning and socially disadvantaged farmers and ranchers under its Direct Farm Ownership Down Payment Loan Program, and provides retiring farmers the opportunity to transfer their land to future generations of farmers and ranchers.
FSA also targets a portion of its direct and guaranteed operating loan and farm ownership loan funds to beginning farmers and ranchers and socially disadvantaged applicants.
Emergency loans are available to established farmers and ranchers who have suffered losses as a result of a natural disaster or quarantine.
Section 5302 of the 2014 Farm Bill amends the Consolidated Farm and Rural Development Act (also known as the CONACT) to provide the Secretary authority to conduct pilot projects of limited scope and duration to evaluate processes and techniques that may improve the efficiency and effectiveness of real estate loans, operating loans, emergency loans, and administrative provisions (7 U.S.C. 1983d). Processes and techniques can be as specific as the manner in which applications for assistance are submitted (for example, through electronic submissions), or as broad as more effective methods of outreach on programs for existing and potential customers.
FSA is constantly identifying ways to improve services and is interested in hearing what kinds of pilots our customers, stakeholders, and other members of the public want to see. FSA wants to hear how we can better serve our customers and understand their needs. The following are examples of initiatives that FSA has already taken to improve efficiency and effectiveness for FLP.
One way that FSA has made improvements is by expanding credit opportunities for farmers and ranchers with the Microloan Program. A Microloan is a small direct farm operating loan with a shortened application process and reduced paperwork. In addition, modifications were made to the experience requirement to allow for mentors and apprenticeships. This has already helped farmers.
FSA has recently released a recent package of technology enhancements that include Web access for handheld and smartphone users, as well as a more efficient and timely option for receiving news and critical program information. The technology improvements will allow users of FSA information to gain access to easy-to-read data, including key features such as loan deficiency payment rates, posted county prices, FSA news releases and AskFSA, the agency's online self-help knowledge base.
A recently revised policy allows FSA to issue farm loan guarantees to nontraditional lenders. A nontraditional lender is one that does not typically hold deposit accounts and is not subject to oversight and supervision. The most common nontraditional lenders are those who are funded under the U.S. Department of Treasury's Community Development Financial Institutions Fund. Nontraditional lenders can originate, hold and service guaranteed loans. The goal is to improve and maintain the quality of rural communities. This goal is accomplished by assisting rural communities, individuals, groups, and support organizations with viable rural development enterprises. FSA has worked with traditional lenders in the past, but is now expanding to work with both traditional and nontraditional lenders.
FSA is currently operating a pilot project in digital signatures. The Electronic Signatures in Global and National Commerce Act (Pub. L. 106-229) ensures that a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form. It is an FSA policy decision whether a certain electronic format is practicable for a certain transaction.
This digital signature pilot will allow FSA to evaluate the use of this available technology, potential cost and time savings, and determine whether it is practical for FLP and Farm Programs (FP) purposes. This will assist FSA to develop policy to not only allow the use of digital signatures by FSA officials, but by producers, FLP applicants, borrowers, and lenders as well. The pilot is to be conducted in Indiana and Texas; digital signatures are only authorized for certain FLP and FP documents.
FSA is requesting comments that will be used to develop recommendations for pilot projects that will meet the intended goals to evaluate processes and techniques that may improve the efficiency and effectiveness of real estate loans, operating loans, emergency loans, and administrative provisions. The pilot projects may diverge from program regulations at 7 CFR parts 761 through 767, but the pilot projects must be consistent with the existing statutory provisions governing Real Estate Loans, Operating Loans, Emergency Loans, and Administrative Provisions (see 7 U.S.C. Chapter 50, subchapters I through IV for the details of these CONACT provisions). For example, a suggestion could be for projects that provide financial and management assistance to eligible family farmers for authorized loan purposes. Additional information on FLP policies and procedures is available in FSA handbooks 1-FLP through 6-FLP at
The following questions provide examples of loan making and servicing concerns that may be helpful to consider for your comment:
• How can FSA better reach and serve veterans, especially returning veterans who plan to start or return to farming?
• How can FSA encourage lending for urban agriculture?
• What pricing models can be developed or expanded to assist loan officers in lending to producers who sell traditional and specialty agricultural products at non-traditional markets?
• What types of borrower training systems can be explored to provide long term economic benefits to agricultural producers?
• Should FSA explore the use of credit scores for small, streamlined loan applications?
• Are there alternative lenders and financers (grocery chains, implement
• What type of consulting service could be developed to assist existing borrowers to be more productive and successful?
• How can the role of a mentor be expanded beyond microloans?
• What are other methods that an applicant can successfully prove experience and managerial ability?
In your comment it will be most helpful to:
• Explain the proposed pilot project in as much detail as possible, including the issue or concern to be addressed and the intended benefit(s);
• Provide specific examples to illustrate your points;
• Describe whether the project is intended to benefit any particular region, type of agricultural producer (organic, direct market, wholesale, etc.), or end customer; and
• Outline any potential costs or costs savings and the basis for the assumptions.
At the conclusion of the comment period, FSA staff will review and consider all of the suggestions in the comments.
As required by the 2014 Farm Bill, at least 60 days before initiating a pilot project, the Secretary will submit notice of the proposed pilot project to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate. FSA will also consider any feedback provided to the Secretary in response to that notice.
FSA expects to select at least two to three pilot projects. FSA will announce the pilot projects through news release.
FSA expects that one of the results of the pilot project will help expand service to underserved producers. For example, in remote areas, such as Indian Country, distance and travel time make it extremely difficult to establish the network of contacts essential for effective outreach and to provide technical assistance. FSA lacks the necessary knowledge and staff resources to overcome language and cultural barriers for some minority communities and provide effective outreach and technical assistance. In such situations, partnerships with local organizations could use existing networks and expertise to provide effective outreach and technical assistance and expand participation. This is one example of how FSA may carry out some pilot projects.
In addition to this notice, general information about FSA's administration of FLP is also available on the FSA Web site at
Greater Miami Foreign-Trade Zone, Inc., grantee of FTZ 32, submitted a notification of proposed production activity to the FTZ Board on behalf of Brightstar Corporation (Brightstar), located in Miami, Florida. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on October 1, 2014.
Brightstar already has authority to produce cell phones and cell phone accessories within Site 6 of FTZ 32. The current request would add foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Brightstar from customs duty payments on the foreign status materials/components used in export production. On its domestic sales, Brightstar would be able to choose the duty rates during customs entry procedures that apply to cell phones (duty rate 0%) for the foreign status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
The materials/components sourced from abroad include: Plastic bubble wrap; plastic carrying cases; packaging trays and inserts; plastic bags and sacks; corrugated and non-corrugated paper boxes; paper packaging trays and inserts; paper labels; instruction manuals; nickel-cadmium batteries; nickel-iron batteries; nickel-metal batteries; lithium-ion batteries; lithium-metal batteries; cell phone parts; and, memory cards (duty rate ranges from 0 to 6.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is November 17, 2014.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Christopher Kemp at
On May 22, 2013, in the U.S. District Court for the District of New Jersey, Ming Xie, a/k/a Michael Xie (“Xie”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”) and the International Emergency Economic Powers Act (50 U.S.C. 1701,
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS received notice of Xie's conviction for violating the AECA and IEEPA, and has provided notice and an opportunity for Xie to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS received a submission from Xie. Based upon my review and consideration of that submission, and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Xie's export privileges under the Regulations for a period of ten (10) years from the date of Xie's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Xie had an interest at the time of his conviction.
Pursuant to Sections 766.25(h) and 766.23 of the Regulations, the Director of BIS's Office of Exporter Services, in consultation with the Director of BIS's Office of Export Enforcement, may, in order to prevent evasion of a denial order, make a denial order applicable not only to the respondent, but also to other persons related to the respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business.
As provided in Section 766.23 of the Regulations, BIS gave notice to Horizon that its export privileges under the Regulations could be denied for up to ten (10) years due to its relationship with Xie and that BIS believed that naming Horizon as a person related to Xie would be necessary to prevent evasion of a denial order imposed against Xie. In providing such notice, BIS gave Horizon an opportunity to oppose its addition to the Xie Denial Order as a related party.
Having received and reviewed a submission from Xie, I have decided, following consideration of that submission and consultations with BIS's Office of Export Enforcement, including its Director, to include name Horizon as a Related Person and make this Denial Order applicable to Horizon, thereby denying its export privileges for ten (10) years from the date of Xie's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Horizon had an interest at the time of Xie's conviction. The 10-year denial period is scheduled to end on May 22, 2023.
Xie is the president of Horizon. Therefore, Horizon is related to Xie within the meaning of Section 766.23. BIS also has reason to believe that Horizon should be added as a related person in order to prevent evasion of this Denial Order. Xie conducted the unlawful export activities involved in his conviction through Horizon.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of a Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person, if such service involves the use of any item subject to the Regulations that has been
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
NMFS is considering the adoption of a new competitive, merit-based, financial assistance program supporting research on Alaska pinniped populations (seals and sea lions). To this end, NMFS is soliciting comments from the public and the marine mammal research community concerning possible program priorities to consider for an annual Alaska Pinniped Research Program. The objective of the program would be to support effective conservation and management of pinnipeds in waters off Alaska through a grant program focused on high priority research objectives related to NMFS recovery plans, conservation plans, research plans (including those developed with Alaska Native co-management organizations), or post-delisting monitoring plans for these species. Final competitive program priorities will be selected by NMFS after considering input received from the public.
Comments must be received no later than November 7, 2014.
You may submit comments, identified by FDMS docket Number NOAA-NMFS-2014-0123, any of the following methods:
Copies of pertinent NMFS recovery plans, conservations plans, research plans (including those developed with Alaska Native co-management organizations), and post-delisting monitoring plans for Alaska pinniped species are available at
Kim Rivera, NMFS Alaska Region, 907-586-7424,
NMFS is responsible for the stewardship, conservation, and management of pinniped species in Alaska, including the Steller sea lion (
The objectives of a potential Alaska Pinniped Research Program would include: 1) Supporting effective conservation and management of seals, sea lions, and Northern fur seals in waters off Alaska; and 2) Implementing high-priority research objectives or address species conservation priorities specified in a NMFS recovery plan, conservations plan, research plans (including those developed with Alaska Native co-management organizations), or post-delisting monitoring plans (for copies of these plans see
This is not a notice of availability of grant funds; moreover, any future funding is contingent on availability of funds. NMFS is seeking input on specific program priorities that might be considered for inclusion in an annual Alaska Pinniped Research Program that addresses the above-stated objectives. If NMFS proceeds with such a program, NMFS will issue a Federal Funding Opportunity notice to solicit applications for grants to address the selected priorities.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council's (Council) Observer Policy Committee will meet to review scientific information affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Thursday, October 23, 2014 beginning at 9:30 a.m.
The meeting will be held at the Sheraton Colonial Hotel; One Audubon Road; Wakefield, MA 01880; telephone: (781) 245-9300; fax: (781) 245-0842.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Observer Policy Committee will meet to: Review progress regarding development of NMFS-led omnibus amendment to establish provisions for industry-funded monitoring across all Council-managed fisheries; review and discuss timeline; discuss details of omnibus industry-funded amendment alternatives and develop related Committee recommendations and plan next meeting. They will address other business as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions 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 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 Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of open public meetings.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the Marine Fisheries Advisory Committee (MAFAC). The members will discuss and provide advice on issues outlined in the agenda below.
The meeting is scheduled for October 23, 2014, 4-5:30 p.m., Eastern Daylight Time.
The public meeting will be conducted by telephone. Public access is available at 1315 East-West Highway, Silver Spring, MD 20910.
Any member of the public wishing to attend the public teleconference may contact Heidi Lovett, (301) 427-8004; email:
The MAFAC was established by the Secretary of Commerce (Secretary), and, since 1971, advises the Secretary on all living marine resource matters that are the responsibility of the Department of Commerce. The charter and other information are located online at
The Committee is convening to discuss and finalize comments on the proposed rule for the Gulf of Mexico Aquaculture Plan for submission to the NOAA Fisheries Assistant Administrator and to consider other administrative matters. This agenda is subject to change.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Heidi Lovett, 301-427-8004 by October 16, 2014.
National Marine Fisheries Service (NMFS), National Oceanic and
Notice; issuance of permit amendment.
Notice is hereby given that a major amendment to Permit No. 14330-01 has been issued to the Aleut Community of St. Paul Island, Tribal Government, Ecosystem Conservation Office, St. Paul Island, AK 99660.
The permit amendment and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; telephone: (301) 427-8401; fax: (301) 713-0376.
Brendan Hurley or Amy Sloan; telephone: (301) 427-8401.
On July 17, 2013, notice was published in the
Permit No. 14330-02 authorizes the permit holder to conduct activities to fulfill their Biosampling, Disentanglement, and Island Sentinel program responsibilities as established under the co-management agreement between NMFS and the Aleut Communities. Activities include northern fur seal (1) disentanglement; (2) sample collection from dead animals and sample export; and (3) haulout and rookery observations, monitoring, and remote camera maintenance. The permit amendment authorizes additional takes of northern fur seals for new habitat use studies, incorporates incidental disturbance of Steller sea lions and harbor seals during other fur seal studies without increasing authorized takes, consolidates existing fur seal authorized takes of certain age and sex categories, consolidates existing fur seal authorized takes for studies with similar types of incidental disturbance, and extends the permit for one year. The permit amendment expires on August 31, 2015.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an Incidental Harassment Authorization (IHA).
In accordance with the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an IHA to the National Science Foundation (NSF) Division of Polar Programs, and Antarctic Support Contract (ASC) on behalf of two research institutions, University of Texas at Austin and University of Memphis, to take marine mammals, by Level B harassment, incidental to conducting a low-energy marine geophysical (seismic) survey in the Scotia Sea and South Atlantic Ocean, September to October 2014.
Effective September 20, 2014, to December 1, 2014.
A copy of the IHA and the application are available by writing Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 or by telephone the contacts listed below (see
An electronic copy of the IHA application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed here (see
An “Environmental Assessment on the Issuance of an Incidental Harassment Authorization to the National Science Foundation and Antarctic Support Contract to Take Marine Mammals by Harassment Incidental to a Low-energy Marine Geophysical Survey in the Scotia Sea and South Atlantic Ocean, September to October 2014” was prepared by NMFS. NMFS also issued a Biological Opinion under section 7 of the Endangered Species Act (ESA) to evaluate the effects of the low-energy seismic survey and IHA on marine species listed as threatened and endangered. The NMFS Biological Opinion is available online at:
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA, (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On April 15, 2014, NMFS received an application from NSF and ASC requesting that NMFS issue an IHA for the take, by Level B harassment only, of small numbers of marine mammals incidental to conducting a low-energy marine seismic survey in the Exclusive Economic Zone (EEZ) of the South Georgia and South Sandwich Islands and International Waters (i.e., high seas) in the Scotia Sea and southern Atlantic Ocean during September to October 2014.
The research will be conducted by two research institutions: University of Texas at Austin and University of Memphis. NSF and ASC plan to use one source vessel, the RVIB
Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the seismic airgun array may have the potential to cause behavioral disturbance for marine mammals in the survey area. This is the principal means of marine mammal taking associated with these activities, and NSF and ASC have requested an authorization to take 26 species of marine mammals by Level B harassment. Take is not expected to result from the use of the single-beam echosounder, multi-beam echosounder, ADCP, and sub-bottom profiler, as the brief exposure of marine mammals to one pulse, or small numbers of signals, to be generated by these instruments in this particular case is not likely to result in the harassment of marine mammals. Also, NMFS does not expect take to result from collision with the source vessel because it is a single vessel moving at a relatively slow, constant cruise speed of 5 knots ([kts]; 9.3 kilometers per hour [km/hr]; 5.8 miles per hour [mph]) during seismic acquisition within the survey, for a relatively short period of time (approximately 30 operational days). It is likely that any marine mammal will be able to avoid the vessel.
NSF and ASC plans to use one source vessel, the
The
The planned project and survey sites are located in selected regions of the Scotia Sea (located northeast of the Antarctic Peninsula) and the southern Atlantic Ocean and focus on two areas: (1) Between the central rise of the Scotia Sea and the East Scotia Sea, and (2) the far southern Atlantic Ocean immediately northeast of South Georgia towards the northeastern Georgia Rise (both encompassing the region between 53 to 58° South, and between 33 to 40° West) (see Figure 2 of the IHA application). The majority of the planned seismic survey will be within the EEZ of the Government of the South Georgia and South Sandwich Islands (United Kingdom) and a limited portion of the seismic survey will be conducted in International Waters. Figure 3 of the IHA application illustrates the general bathymetry of the planned study area and the border of the existing South Georgia Maritime Zone. Water depths in the survey area exceed 1,000 m. There is limited information on the depths in the study area and therefore more detailed information on bathymetry is not available. The planned seismic survey will be within an area of approximately 3,953 km
NSF and ASC plans to conduct a low-energy seismic survey in the Scotia Sea and the southern Atlantic Ocean from September to October 2014. In addition to the low-energy seismic survey, scientific activities will include conducting a bathymetric profile survey of the seafloor using transducer-based instruments such as a multi-beam echosounder and sub-bottom profiler; collecting global positioning system (GPS) information through the temporary installation of three continuous Global Navigation Satellite Systems (cGNSS) on the South Georgia micro-continent; and collecting dredge
The low-energy seismic survey of the Scotia Sea and southern Atlantic Ocean will involve conducting single channel seismic reflection profiling across the northern central Scotia Sea along two lines that cross the seismically active and apparently compressive boundary between the South Georgia micro-continent and the Northeast Georgia Rise. The targeted seismic survey will occur in the unexplored zones of elevated crust in the eastern central Scotia Sea and is designed to address several critical questions with respect to the tectonic nature of the northern and southern boundaries of the South Georgia micro-continent.
Opening of deep Southern Ocean gateways between Antarctica and South America and between Antarctica and Australia permitted complete circum-Antarctic circulation. This Antarctic Circumpolar Current is not well understood. The Antarctic Circumpolar Current may have been critical in the transition from a warm Earth in the early Cenozoic to the subsequent much cooler conditions that persist to the present day. Opening of Drake Passage and the west Scotia Sea likely broke the final barrier formed by the Andes of Tierra del Fuego and the “Antarctandes” of the Antarctic Peninsula. Once this deep gateway, usually referred to as the Drake Passage gateway, was created, the strong and persistent mid-latitude winds could generate one of the largest deep currents on Earth, at approximately 135 Sverdrup (a Sverdrup [Sv] is a measure of average flow rate in million cubic meters of water per second). This event is widely believed to be closely associated in time with a major, abrupt drop in global temperatures and the rapid expansion of the Antarctic ice sheets at 33 to 34 Million Annus (Ma, i.e., million years from the present/before the current date), the Eocene-Oligocene boundary.
The events leading to the complete opening of the Drake Passage gateway are very poorly known. The uncertainty is due to the complex tectonic history of the Scotia Sea and its enclosing Scotia Ridge, the eastward-closing, locally emergent submarine ridge that joins the southernmost Andes to the Antarctic Peninsula and deflects the Antarctic Circumpolar Current through gaps in its northern limb. The critical keys to this problem are the enigmatic floor of the central Scotia Sea between the high relief South Georgia (approximately 3,000 m [9,842.5 ft]) and the lower South Orkney islands (approximately 1,200 m [3,937 ft]), emergent parts of micro-continental blocks on the North and South Scotia ridges respectively, and the North Scotia Ridge itself.
In 2008, an International Polar Year research program was conducted using the RVIB
The results of this study of the central Scotia Sea are fragmentary due to the limited time available during Cruise NBP 0805. Therefore, the extent, geometry, and physiography of a submerged volcanic arc that may have delayed formation of a complete Antarctic Circumpolar Current until after the initiation of Antarctic glaciation are poorly defined, with direct dating limited to a few sites. To remedy these deficiencies, thereby further elucidating the role of the central Scotia Sea in the onset and development of the Antarctic Circumpolar Current, the planned targeted surveying and dredging will determine likely arc constructs in the eastern central Scotia Sea. These will be combined with a survey of the margins of the South Georgia micro-continent and installation of three continuous GPS stations on South Georgia that will test the hypothesis regarding the evolution of the North Scotia Ridge, also an impediment to the present Antarctic Circumpolar Current. The Principal Investigators are Dr. Ian Dalziel and Dr. Lawrence Lawver of the University of Texas at Austin, and Dr. Robert Smalley of the University of Memphis.
The procedures to be used for the survey will be similar to those used during previous low-energy seismic surveys by NSF and will use conventional seismic methodology. The planned survey will involve one source vessel, the
The weather and sea conditions will be closely monitored, including for conditions that could limit visibility. Pack ice is not anticipated to be encountered during the planned cruise; therefore, no icebreaking activities are expected. If situations are encountered which pose a risk to the equipment, impede data collection, or require the vessel to stop forward progress, the equipment will be shut-down and retrieved until conditions improve. In general, the airgun array and streamer(s) can be retrieved in less than 30 minutes.
The planned seismic survey (including equipment testing, start-up, line changes, repeat coverage of any areas, and equipment recovery) will consist of approximately 2,950 kilometers (km) (1,592.9 nautical miles
NMFS outlined the purpose of the program in a previous notice for the proposed IHA (79 FR 45592, August 5, 2014). The activities to be conducted have not changed between the proposed IHA notice and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including vessel and acoustic source specifications, the reader should refer to the notice for the proposed IHA (79 FR 45592, August 5, 2014), the IHA application, EA, and associated documents referenced above this section.
A notice of preliminary determinations and proposed IHA for NSF and ASC's low-energy seismic survey was published in the
For this seismic survey, L-DEO developed the exclusion and buffer zones based on the conservative deep-water calibration results from Diebold et al. (2010). L-DEO's current modeling approach represents the best available information to reach NMFS's determinations for the IHA. The comparisons of L-DEO's model results and the field data collected in the Gulf of Mexico illustrate a degree of conservativeness built into L-DEO's model for deep water.
NMFS acknowledges the Commission's concerns about L-DEO's current modeling approach for estimating exclusion and buffer zones and also acknowledge that L-DEO did not incorporate site-specific sound speed profiles, bathymetry, and sediment characteristics of the research
The NSF and ASC IHA application and IEE/EA describe the approach to establishing mitigation exclusion and buffer zones. In summary, L-DEO acquired field measurements for several array configurations at shallow- and deep-water depths during acoustic verification studies conducted in the northern Gulf of Mexico in 2003 (Tolstoy
L-DEO's model is most directly applicable to deep water. Reflected and refracted arrivals were considered in verifying L-DEO's model. Given the planned seismic survey is entirely in deep water, and the model has been demonstrated to be conservative in deep water, NMFS concludes that the L-DEO model is an effective means to aid in determining potential impacts to marine mammals from the planned seismic survey and estimating take numbers, as well as establishing buffer and exclusion zones for mitigation.
During a March 2013 meeting, L-DEO discussed the L-DEO model with the Commission, NMFS, and NSF. L-DEO compared the Gulf of Mexico (GOM) calibration measurements (Tolstoy
However, we continue to work with the NSF, ASC, L-DEO, and other related entities on verifying the accuracy of their model. L-DEO is currently analyzing whether received levels can be measured in real-time using the ship's hydrophone streamer to estimate the sound field around the ship and determine actual distances to the buffer and exclusion zones. Crone
L-DEO has conveyed to NMFS that additional modeling efforts to refine the process and conduct comparative analysis may be possible with the availability of research funds and other resources. Obtaining research funds is typically through a competitive process, including those conducted by federal agencies. The use of models for calculating buffer and exclusion zone radii and developing take estimates is not a requirement of the MMPA ITA process. Furthermore, NMFS does not provide specific guidance on model parameters nor prescribe a specific model for applicants as part of the MMPA ITA process. There is a level of variability not only with parameters in models, but the uncertainty associated with data used in models, and therefore the quality of the model results submitted by applicants. NMFS, however, takes all of this variability into consideration when evaluating applications. Applicants use models as a tool to evaluate potential impacts, to estimate the number of takes of marine mammals, and for mitigation purposes. NMFS takes into consideration the model used and its results in determining the potential impacts to marine mammals; however, it is just a component of NMFS's analysis during the MMPA consultation process, as NMFS also takes into consideration other factors associated with the proposed action, such as geographic location, duration of activities, context, intensity, etc. Takes generated by modeling are used as estimates, not absolutes, and are factored into NMFS's analysis accordingly. Of broader note, NMFS is currently pursuing methods that include site-specific components to allow us to better cross-check isopleth and propagation predictions submitted by applicants. Using this information, NMFS could potentially recommend modifications to take estimates and/or mitigation zones, as appropriate.
There are many different modeling products and services commercially available that applicants could potentially use in developing their take estimates and analyses for MMPA ITAs. These different models range widely in cost, complexity, and the number of specific factors that can be considered in any particular modeling run. NMFS does not, and does not believe that it is appropriate to, prescribe the use of any particular modeling package. Rather, each applicant's approach is evaluated independently in the context of its activity. In cases where simpler models are used and there is concern that a model might not capture the variability across a parameter(s) that is not represented in the model, conservative choices are often made at certain decision points in the model to help ensure that modeled estimates are buffered in a manner that would not result in the agency underestimating the number of takes or extent of effects. In this case, results have shown that L-DEO's model reliably and conservatively estimates mitigation radii in deep water. The observed sound levels from the field measurements fell almost entirely below L-DEO's estimated mitigation radii for deep water (Diebold
NMFS encourages applicants to incorporate modeling based on site-specific and operation-specific parameters in their IHA applications, whenever possible, but it is unrealistic to require all applicants to do so in IHA applications and/or NEPA documents (EAs and EISs) as activities may vary in their scope and level of anticipated impacts, and applicants may have varying funding and resource constraints. However, it is still incumbent upon NMFS to take the uncertainty that comes along with varying models into consideration in both the analysis of effects and the consideration of mitigation measures. In this case, as described elsewhere in this section, we have considered the uncertainty associated with the applicant's model and have determined that it does not change either our findings regarding the anticipated level and severity of impacts on marine mammals or our conclusion that the mitigation measures required provide the means of effecting the least practicable impact on the affected species or stocks and their habitat.
Of broader note, NMFS is currently pursuing methods (that include site-specific components) to allow us to better cross-check isopleth and propagation predictions submitted by applicants. Using this information, we could potentially recommend modifications to take estimates and/or mitigation zones, as appropriate.
The Commission suggests that, for certain sources considered here, the interval between pulses would not be discernible to the animal, thus rendering them effectively continuous. However, an echosounder's “rapid staccato” of pulse trains is emitted in a similar fashion as odontocete echolocation click trains. Research indicates that marine mammals, in general, have extremely fine auditory temporal resolution and can detect each signal separately (e.g., Au
In conclusion, echosounder, ADCP, and sub-bottom profiler signals are intermittent rather than continuous signals, and the fine temporal resolution of the marine mammals auditory systems allows them to perceive these sounds as such. Further, the physical characteristics of these signals indicate a greater similarity to the way that intermittent, impulsive sounds are received. Therefore, the 160 dB threshold (typically associated with impulsive sources) is more appropriate than the 120 dB threshold (typically associated with continuous sources) for estimating takes by behavioral harassment incidental to use of such sources.
Even putting any potential grammatical questions aside, NMFS does not believe that the regulations suggests that the monitoring conducted by an authorized entity must be able to quantify the exact number of takes that occurred during the action, but rather that the monitoring increase understanding of the level and effects of the action. In fact, the Commission's comment supports this interpretation. As noted by the Commission, section 101(a)(5)(D)(iv) requires that NMFS “modify, suspend, or revoke an authorization” if it finds, among other things, that the authorized taking is having more than a negligible impact or that more than small numbers of marine mammals are being taken. Both the negligible impact and small numbers findings may be made using qualitative, or relative (compared to the stock abundance) information. The sorts of qualitative, or relative information collected during the wide variety of monitoring that is conducted pursuant to MMPA authorizations can be used to provide broad support for the findings underlying the issuance of an IHA or can highlight red flags that might necessitate either a reconsideration of an issued IHA or a change in analyses in future authorizations. NMFS's previous response is included below for reference.
NMFS's implementing regulations require that applicants include monitoring that will result in “an increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities . . .” This increased knowledge of the level of taking could be qualitative or relative in nature, or it could be more directly quantitative. Scientists use g(0) and f(0) values in systematic marine mammal surveys to account for the undetected animals indicated above; however, these values are not simply established and the g(0) value varies across every observer based on their sighting acumen. While we want to be clear that NMFS does not generally believe that post-activity take estimates using f(0) and g(0) are required to meet the monitoring requirement of the MMPA, in the context of the NSF and L-DEO's monitoring plan, NMFS agrees that developing and incorporating a way to better interpret the results of their monitoring (perhaps a simplified or generalized version of g(0) and f(0)) is a good idea. NMFS is continuing to examine this issue with NSF (and other entities) to develop ways to improve their post-survey take estimates. NMFS will consult with the Commission and NMFS scientists prior to finalizing these recommendations.
NMFS notes that current monitoring measures for past and current IHAs for research seismic surveys require the collection of visual observation data by PSOs prior to, during, and after airgun operations. This data collection may contribute to baseline data on marine mammals (e.g., presence/absence) and provide some generalized support for estimated take numbers (as well as providing data regarding behavioral responses to seismic operation that are observable at the surface). However, it is unlikely that the information gathered from these cruises alone would result in any statistically robust conclusions for any particular species because of the small numbers of animals typically observed.
Various national Antarctic research programs (e.g., British Antarctic Survey, Australian Antarctic Division, and NMFS National Marine Mammal Laboratory), academic institutions (e.g., Duke University, University of St. Andrews, and Woods Hole Oceanographic Institution), and other organizations (e.g., South Georgia Museum, Fundacion Cethus, Whale and Dolphin Conservation, and New England Aquarium) have conducted scientific cruises and/or examined data on marine mammal sightings along the coast of Antarctica, south Atlantic Ocean, Scotia Sea, and around South Georgia and South Sandwich islands, and these data were considered in evaluating potential marine mammals in the action area. Records from the International Whaling Commission's International Decade of Cetacean Research (IDCR), Southern Ocean Collaboration Program (SOC), and Southern Ocean Whale and Ecosystem Research (IWC-SOWER) circumpolar cruises were also considered.
The marine mammals that generally occur in the planned action area belong to three taxonomic groups: mysticetes (baleen whales), odontocetes (toothed whales), and pinnipeds (seals and sea lions). The marine mammal species that could potentially occur within the southern Atlantic Ocean in proximity to the action area in the Scotia Sea include 32 species of cetaceans and 7 species of pinnipeds.
The waters of the Scotia Sea and southern Atlantic Ocean, especially those near South Georgia Island, are characterized by high biomass and productivity of phytoplankton, zooplankton, and vertebrate predators,
The six species of pinnipeds that are found in the southern Atlantic Ocean and Southern Ocean and may be present in the planned study area include the crabeater (
Marine mammal species likely to be encountered in the planned study area that are listed as endangered under the U.S. Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
In addition to the 26 species known to occur in the Scotia Sea and the southern Atlantic Ocean, there are 14 cetacean species with ranges that are known to potentially occur in the waters of the study area: pygmy right (
Refer to sections 3 and 4 of NSF and ASC's IHA application for detailed information regarding the abundance and distribution, population status, and life history and behavior of these other marine mammal species and their occurrence in the planned project area. The IHA application also presents how NSF and ASC calculated the estimated densities for the marine mammals in the study area. NMFS has reviewed these data and determined them to be the best available scientific information for the purposes of the IHA.
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., seismic airgun operation, vessel movement, gear deployment) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measureable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented, and how either of those would shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall
• Low-frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 30 kHz;
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (eight species of true porpoises, six species of river dolphins,
• Phocid pinnipeds in water: Functional hearing is estimated to occur
• Otariid pinnipeds in water: Functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.
As mentioned previously in this document, 26 marine mammal species (20 cetacean and 6 pinniped species) are likely to occur in the seismic survey area. Of the 20 cetacean species likely to occur in NSF and ASC's action area, 7 are classified as low-frequency cetaceans (southern right, humpback, minke, Antarctic minke, sei, fin, and blue whale), 12 are classified as mid-frequency cetaceans (sperm, Arnoux's beaked, Cuvier's beaked, Shepherd's beaked, southern bottlenose, Gray's beaked, strap-toothed beaked, killer, and long-finned pilot whale, and southern right whale, Peale's, and hourglass dolphin), and 1 is classified as a high-frequency cetacean (spectacled porpoise) (Southall
Acoustic stimuli generated by the operation of the airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the survey area. The effects of sounds from airgun operations might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent hearing impairment, or non-auditory physical or physiological effects (Richardson
The notice of the proposed IHA (79 FR 45592, August 5, 2014) included a discussion of the effects of sounds from airguns on mysticetes and odontocetes, including tolerance, masking, behavioral disturbance, hearing impairment, and other non-auditory physical effects. NMFS refers the readers to USGS's IHA application and EA for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels.
NMFS included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine fish and invertebrates, in the notice of the proposed IHA (79 FR 45592, August 5, 2014). The seismic survey will not result in any permanent impacts on habitats used by the marine mammals in the study area, including the food sources they use (i.e., fish and invertebrates), and there will be no physical damage to any habitat. While NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat is temporary and reversible, which was considered in further detail in the notice of the proposed IHA (79 FR 45592, August 5, 2014), as behavioral modification. The main impact associated with the activity will be temporarily elevated noise levels and the associated direct effects on marine mammals.
In order to issue an Incidental Take Authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses (where relevant).
NSF and ASC reviewed the following source documents and have incorporated a suite of appropriate mitigation measures into their project description.
(1) Protocols used during previous NSF and USGS-funded seismic research cruises as approved by NMFS and detailed in the “Final Programmatic Environmental Impact Statement/Overseas Environmental Impact Statement for Marine Seismic Research Funded by the National Science Foundation or Conducted by the U.S. Geological Survey;”
(2) Previous IHA applications and IHAs approved and authorized by NMFS; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the planned activities, NSF, ASC, and their designees shall implement the following mitigation measures for marine mammals:
(1) Exclusion zones around the sound source;
(2) Speed and course alterations;
(3) Shut-down procedures; and
(4) Ramp-up procedures.
Received sound levels have been modeled by L-DEO for a number of airgun configurations, including two 45 in
Empirical data concerning the 190, 180, and 160 dB (rms) distances were acquired for various airgun arrays based on measurements during the acoustic verification studies conducted by L-DEO in the northern GOM in 2003 (Tolstoy
Based on the modeling data, the outputs from the pair of 105 in
Following a shut-down, NSF and ASC will not resume airgun activity until the marine mammal has cleared the exclusion zone. NSF and ASC will consider the animal to have cleared the exclusion zone if:
• A PSO has visually observed the animal leave the exclusion zone, or
• A PSO has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (i.e., small odontocetes and pinnipeds), or 30 minutes for species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy and dwarf sperm, killer, and beaked whales).
Although power-down procedures are often standard operating practice for seismic surveys, they will not be used during this planned seismic survey because powering-down from two airguns to one airgun would make only a small difference in the exclusion zone(s) that probably would not be enough to allow continued one-airgun operations if a marine mammal came within the exclusion zone for two airguns.
Ramp-up will begin with a single GI airgun (105 in
If the complete exclusion zone has not been visible for at least 30 minutes prior to the start of operations in either daylight or nighttime, NSF and ASC will not commence the ramp-up. Given these provisions, it is likely that the airgun array will not be ramped-up from a complete shut-down at night or in thick fog, because the outer part of the exclusion zone for that array would not be visible during those conditions. If one airgun has operated, ramp-up to full power will be permissible at night or in poor visibility, on the assumption that marine mammals will be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away if they choose. A ramp-up from a shut-down may occur at night, but only where the exclusion zone is small enough to be visible. NSF and ASC will not initiate a ramp-up of the airguns if a marine mammal is sighted within or near the applicable exclusion zones during the day or close to the vessel at night.
NMFS has carefully evaluated the applicant's mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. NMFS's evaluation of potential measures included consideration of the following factors in relation to one another:
(1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2) The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
(3) The practicability of the measure for applicant implementation including consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the activity.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
(1) Avoidance of minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of airguns, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
(3) A reduction in the number of time (total number or number at biologically important time or location) individuals would be exposed to received levels of airguns, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
(4) A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of airguns, or other activities, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
(6) For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on NMFS's evaluation of the applicant's measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. NSF and ASC submitted a marine mammal monitoring plan as part of the IHA application. It can be found in Section 13 of the IHA application. The plan has not been modified or supplemented between the notice of the proposed IHA (79 FR 45592, August 5, 2014) and this final notice announcing the issuance of the IHA, as none of the comments or new information received from the public during the public comment period required a change to the plan.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
(1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
(2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of sound (airguns) that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;
(3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information); and
• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
(4) An increased knowledge of the affected species; and
(5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
NSF and ASC will conduct marine mammal monitoring during the low-energy seismic survey, in order to implement the mitigation measures that require real-time monitoring and to satisfy the anticipated monitoring requirements of the IHA. NSF and ASC's “Monitoring Plan” is described below this section. NSF and ASC understand that this monitoring plan will be subject to continuing review by NMFS and that refinements may be required. The monitoring work described here has been planned as a self-contained project independent of any other related monitoring projects that may be occurring simultaneously in the same regions. NSF and ASC are prepared to discuss coordination of their monitoring program with any related work that might be done by other groups insofar as this is practical and desirable.
NSF and ASC's PSOs will be based aboard the seismic source vessel and will watch for marine mammals near the vessel during daytime airgun operations and during any ramp-ups of the airguns at night. PSOs will also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the start of airgun operations and after an extended shut-down (i.e., greater than approximately 15 minutes for this low-energy seismic survey). When feasible, PSOs will conduct observations during daytime periods when the seismic system is not operating (such as during transits) for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on PSO observations, the airguns will be shut-down when marine mammals are observed within or about to enter a designated exclusion zone. The exclusion zone is a region in which a possibility exists of adverse effects on animal hearing or other physical effects.
During seismic operations in the Scotia Sea and southern Atlantic Ocean, at least three PSOs will be based aboard the
The
Standard equipment for PSOs will be reticle binoculars. Night-vision equipment will not be available. The PSOs will be in communication with ship's officers on the bridge and scientists in the vessel's operations laboratory, so they can advise promptly of the need for avoidance maneuvers or seismic source shut-down. During daytime, the PSO(s) will scan the area around the vessel systematically with reticle binoculars (e.g., 7 × 50 Fujinon FMTRC-SX) and the naked eye. These binoculars will have a built-in daylight compass. Estimating distances is done primarily with the reticles in the binoculars. The PSO(s) will be in direct (radio) wireless communication with ship's officers on the bridge and scientists in the vessel's operations laboratory during seismic operations, so they can advise the vessel operator, science support personnel, and the science party promptly of the need for avoidance maneuvers or a shut-down of the seismic source.
When a marine mammal is detected within or about to enter the designated exclusion zone, the airguns will immediately be shut-down, unless the vessel's speed and/or course can be changed to avoid having the animal enter the exclusion zone. The PSO(s) will continue to maintain watch to determine when the animal is outside the exclusion zone by visual confirmation. Airgun operations will not resume until the animal is confirmed to have left the exclusion zone, or is not observed after 15 minutes for species with shorter dive durations (small odontocetes and pinnipeds) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, killer, and beaked whales).
PSOs will record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data will be used to estimate numbers of animals potentially “taken” by harassment (as defined in the MMPA). They will also provide information needed to order a shut-down of the airguns when a marine mammal is within or near the exclusion zone. Observations will also be made during daytime periods when the
When a sighting is made, the following information about the sighting will be recorded:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the seismic source or vessel (e.g., none, avoidance, approach, paralleling, etc.), and behavioral pace.
2. Time, location, heading, speed, activity of the vessel, sea state, wind force, visibility, and sun glare.
The data listed under (2) will also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
All observations, as well as information regarding ramp-ups or shut-downs will be recorded in a standardized format. Data will be entered into an electronic database. The data accuracy will be verified by computerized data validity checks as the data are entered and by subsequent
Results from the vessel-based observations will provide the following information:
1. The basis for real-time mitigation (airgun shut-down).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS.
3. Data on the occurrence, distribution, and activities of marine mammals in the area where the seismic study is conducted.
4. Information to compare the distance and distribution of marine mammals relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals seen at times with and without seismic activity.
NSF and ASC will submit a comprehensive report to NMFS within 90 days after the end of the cruise. The report will describe the operations that were conducted and sightings of marine mammals near the operations. The report submitted to NMFS will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report will summarize the dates and locations of seismic operations and all marine mammal sightings (i.e., dates, times, locations, activities, and associated seismic survey activities). The report will include, at a minimum:
• Summaries of monitoring effort—total hours, total distances, and distribution of marine mammals through the study period accounting for Beaufort sea state and other factors affecting visibility and detectability of marine mammals;
• Analyses of the effects of various factors influencing detectability of marine mammals including Beaufort sea state, number of PSOs, and fog/glare;
• Species composition, occurrence, and distribution of marine mammals sightings including date, water depth, numbers, age/size/gender, and group sizes, and analyses of the effects of seismic operations;
• Sighting rates of marine mammals during periods with and without airgun activities (and other variables that could affect detectability);
• Initial sighting distances versus airgun activity state;
• Closest point of approach versus airgun activity state;
• Observed behaviors and types of movements versus airgun activity state;
• Numbers of sightings/individuals seen versus airgun activity state; and
• Distribution around the source vessel versus airgun activity state.
The report will also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways. NMFS will review the draft report and provide any comments it may have, and NSF and ASC will incorporate NMFS's comments and prepare a final report. After the report is considered final, it will be publicly available on the NMFS Web site at:
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with NSF and ASC to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. NSF and ASC may not resume their activities until notified by NMFS via letter or email, or telephone.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Level B harassment is anticipated and authorized as a result of the low-energy seismic survey in the Scotia Sea and southern Atlantic Ocean. Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the seismic airgun array are expected to result in the behavioral disturbance of some marine mammals. There is no evidence that the planned activities for which NSF and ASC seek the IHA could result in injury, serious injury, or mortality. The required mitigation and monitoring measures will minimize any potential risk for injury, serious injury, or mortality.
The following sections describe NSF and ASC's methods to estimate take by incidental harassment and present the applicant's estimates of the numbers of marine mammals that could be affected during the low-energy seismic survey in the Scotia Sea and southern Atlantic Ocean. The estimates are based on a consideration of the number of marine mammals that could be harassed during the approximately 325 hours and 2,950 km of seismic airgun operations with the two GI airgun array to be used.
During simultaneous operations of the airgun array and the other sound sources, any marine mammals close enough to be affected by the single and multi-beam echosounders, ADCP, or sub-bottom profiler will already be affected by the airguns. During times when the airguns are not operating, it is unlikely that marine mammals will exhibit more than minor, short-term responses to the echosounders, ADCPs, and sub-bottom profiler given their characteristics (e.g., narrow, downward-directed beam) and other considerations described previously in the notice of the proposed IHA (79 FR 45592, August 5, 2014). Such reactions are not considered to constitute “taking” (NMFS, 2001). Therefore, for this activity, take was not authorized specifically for these sound sources beyond that which is already planned to be authorized for airguns.
There are no stock assessments and very limited population information available for marine mammals in the Scotia Sea and southern Atlantic Ocean. Published estimates of marine mammal densities are limited for the planned low-energy seismic survey's action area. Available density estimates from the Naval Marine Species Density Database (NMSDD) (NAVFAC, 2012) were used for 5 mysticetes and eight odontocetes. Density of spectacled porpoise was based on the density reported in Santora
For other mysticetes and odontocetes, reported sightings data from two previous research surveys in the Scotia Sea and vicinity were used to identify species that may be present in the planned action area and to estimate densities. While these surveys were not specifically designed to quantify marine mammal densities, there was sufficient information to develop density estimates. The data collected for the two studies were in terms of animals sighted per time unit, and the sighting data were then converted to an areal density (number of animals per square km) by multiplying the number of animals observed by the estimated area observed during the survey.
Some marine mammals that were present in the area may not have been observed. Southwell
Sighting data collected during the 2003 RRS
With respect to pinnipeds, one study (Santora
Some pinnipeds that were present in the area during the British Antarctic Survey cruise may not have been observed. Therefore, a correction factor of 1.66 was applied to the pinniped density estimates, which assumes 66% more animals than observed were present and potentially may have been in the water. This conservative correction factor takes into consideration that pinnipeds are relatively difficult to observe in the water due to their small body size and surface behavior, and some pinnipeds may not have been observed due to poor visibility conditions.
The pinnipeds that may be present in the study area during the planned action and are expected to be observed occur mostly near pack ice, coastal areas, and rocky habitats on the shelf, and are not prevalent in open sea areas where the low-energy seismic survey will be conducted. Because density estimates for pinnipeds in the sub-Antarctic and Antarctic regions typically represent individuals that have hauled-out of the water, those estimates are not necessarily representative of individuals that are in the water and could be potentially exposed to underwater sounds during the seismic airgun operations; therefore, the pinniped densities have been adjusted downward to account for this consideration. Take was not requested for Ross seals because preferred habitat for this species is not within the planned action area. Although there is some uncertainty about the representativeness of the data and the assumptions used in the calculations below, the approach used here is believed to be the best available approach, using the best available science.
Numbers of marine mammals that might be present and potentially disturbed are estimated based on the available data about marine mammal distribution and densities in the planned Scotia Sea and southern Atlantic Ocean study area. NSF and ASC estimated the number of different individuals that may be exposed to airgun sounds with received levels greater than or equal to 160 dB re 1 µPa (rms) for seismic airgun operations on one or more occasions by considering the total marine area that would be within the 160 dB radius around the operating airgun array on at least one occasion and the expected density of marine mammals in the area (in the absence of the a seismic survey). The number of possible exposures can be estimated by considering the total marine area that would be within the 160 dB radius (the diameter is 670 m times 2) around the operating airguns. The 160 dB radii are based on acoustic modeling data for the airguns that may be used during the planned action (see Attachment B of the IHA application). As summarized in Table 3 (see Table 8 of the IHA application), the modeling results for the planned low-energy seismic airgun array indicate the received levels are dependent on water depth. Since the majority of the planned airgun operations will be conducted in waters greater than 1,000 m deep, the buffer zone of 670 m for the two 105 in
The number of different individuals potentially exposed to received levels greater than or equal to 160 dB re 1 µPa (rms) from seismic airgun operations was calculated by multiplying:
(1) The expected species density (in number/km
(2) The anticipated area to be ensonified to that level during airgun operations.
Applying the approach described above, approximately 3,953 km
NSF and ASC's estimates of exposures to various sound levels assume that the planned seismic survey will be carried out in full; however, the ensonified areas calculated using the planned number of line-kilometers has been increased by 25% to accommodate lines that may need to be repeated, equipment testing, etc. As is typical during offshore ship surveys, inclement weather and equipment malfunctions will be likely to cause delays and may limit the number of useful line-kilometers of seismic operations that can be undertaken. The estimates of the numbers of marine mammals potentially exposed to 160 dB (rms) received levels are precautionary and probably overestimate the actual numbers of marine mammals that could be involved. These estimates assume that there will be no weather, equipment, or mitigation delays that limit the seismic operations, which is highly unlikely.
Table 5 shows the estimates of the number of different individual marine mammals anticipated to be exposed to greater than or equal to 160 dB re 1 μPa (rms) for seismic airgun operations
NSF and ASC will coordinate the planned marine mammal monitoring program associated with the low-energy seismic survey with other parties that express interest in this activity and area. NSF and ASC will coordinate with applicable U.S. agencies (e.g., NMFS), and will comply with their requirements. NSF has already prepared a permit application for the Government of South Georgia and South Sandwich Islands for the planned research activities, including trawling and sampling of the seafloor. The action will complement fieldwork studying other Antarctic ice shelves, oceanographic studies, and ongoing development of ice sheet and other ocean models. It will facilitate learning at sea and ashore by students, help to fill important spatial and temporal gaps in a lightly sampled region of coastal Antarctica, provide additional data on marine mammals present in the Scotia Sea study areas, and communicate its findings via reports, publications, and public outreach.
Section 101(a)(5)(D) of the MMPA also requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals implicated by this action (in the Scotia Sea and southern Atlantic Ocean study area). Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.) and the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.
In making a negligible impact determination, NMFS evaluated factors such as:
(1) The number of anticipated serious injuries and or mortalities;
(2) The number and nature of anticipated injuries;
(3) The number, nature, intensity, and duration of takes by Level B harassment (all of which are relatively limited in this case);
(4) The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);
(5) The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);
(6) Impacts on habitat affecting rates of recruitment/survival; and
(7) The effectiveness of monitoring and mitigation measures.
NMFS has determined that the specified activities associated with the marine seismic survey are not likely to cause PTS, or other non-auditory injury, serious injury, or death, based on the analysis above and the following factors:
(1) The likelihood that, given sufficient notice through relatively slow ship speed, marine mammals are expected to move away from a noise source that is annoying prior to its becoming potentially injurious;
(2) The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the operation of the airgun(s) to avoid acoustic harassment;
(3) The potential for temporary or permanent hearing impairment is relatively low and would likely be avoided through the implementation of the required monitoring and mitigation measures (including shut-down measures); and
(4) The likelihood that marine mammal detection ability by trained PSOs is high at close proximity to the vessel.
No injuries, serious injuries, or mortalities are anticipated to occur as a result of NSF and ASC's planned low-energy seismic survey, and none are authorized by NMFS. Table 5 of this document outlines the number of authorized Level B harassment takes that are anticipated as a result of these activities. Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described in this notice (see “Potential Effects on Marine Mammals” section above), the activity is not expected to impact rates of annual recruitment or survival for any affected species or stock, particularly given NMFS's and the applicant's planned mitigation, monitoring, and reporting measures to minimize impacts to marine mammals. Additionally, the seismic survey would not adversely impact marine mammal habitat.
For the marine mammal species that may occur within the action area, there are no known designated or important feeding and/or reproductive areas. Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
As mentioned previously, NMFS estimates that 26 species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. The population estimates for the marine mammal species that may be taken by Level B harassment were provided in Tables 2 and 5 of this document. As shown in those tables, the takes all represent small proportions of the overall populations of these marine mammal species (i.e., all are less than or equal to 5%). No injury, serious injury, or mortality is expected to occur for any
Of the 26 marine mammal species under NMFS jurisdiction that may or are known to likely occur in the study area, six are listed as threatened or endangered under the ESA: Southern right, humpback, sei, fin, blue, and sperm whales. These species are also considered depleted under the MMPA. None of the other marine mammal species that may be taken are listed as depleted under the MMPA. Of the ESA-listed species, incidental take has been authorized for all six species. To protect these animals (and other marine mammals in the study area), NSF and ASC will be required to cease airgun operations if any marine mammal enters designated exclusion zones. No injury, serious injury, or mortality is expected to occur for any of these species, and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival for any of these species.
NMFS's practice has been to apply the 160 dB re 1 µPa (rms) received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Southall
While behavioral modifications, including temporarily vacating the area during the operation of the airgun(s), may be made by these species to avoid the resultant acoustic disturbance, the availability of alternate areas for species to move to and the short and sporadic duration of the research activities have led NMFS to determine that the taking by Level B harassment from the specified activity will have a negligible impact on the affected species in the specified geographic region. Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see “Potential Effects on Marine Mammals” section above) in this notice, the activity is not expected to impact rates of annual recruitment or survival for any affected species or stock, particularly given the NMFS and applicant's plan to implement mitigation and monitoring measures will minimize impacts to marine mammals. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from NSF and ASC's low-energy seismic survey will have a negligible impact on the affected marine mammal species or stocks.
As mentioned previously, NMFS estimates that 26 species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. The population estimates for the marine mammal species that may be taken by Level B harassment were provided in Tables 2 and 5 of this document.
The estimated numbers of individual cetaceans and pinnipeds that could be exposed to seismic sounds with received levels greater than or equal to 160 dB re 1 μPa (rms) during the survey (including a 25% contingency) are in Table 5 of this document. Of the cetaceans, 31 southern right, 3 humpback, 616 Antarctic minke, 616 minke, 25 sei, 72 fin, 1 blue, and 8 sperm whales could be taken by Level B harassment during the planned seismic survey, which would represent 0.39, 0.03, 3.4, unknown, 0.03, 1.54, 0.1, and <0.01% of the affected worldwide or regional populations, respectively. In addition, 45 Arnoux's beaked, 3 Cuvier's beaked, 7 Gray's beaked, 37 Shepherd's beaked, 3 strap-toothed beaked, and 35 southern bottlenose whales could be taken be Level B harassment during the planned seismic survey, which would represent unknown, unknown, unknown, unknown, unknown, and 0.07% of the affected worldwide or regional populations, respectively. Of the delphinids, 61 killer whales, 848 long-finned pilot whales, and 10 Peale's, 61 hourglass, and 24 southern right whale dolphins, and 6 spectacled porpoise could be taken by Level B harassment during the planned seismic survey, which would represent 0.08, 0.42, unknown/5, 0.04, unknown, and unknown of the affected worldwide or regional populations, respectively. Of the pinnipeds, 73 crabeater, 46 leopard, 20 Weddell, and 1 southern elephant seals and 2,017 Antarctic and 2,017 Subantarctic fur seals could be taken by Level B harassment during the planned seismic survey, which would represent <0.01, 0.02, <0.01, <0.01, 0.13, and 0.65 of the affected worldwide or regional population, respectively.
No known current worldwide or regional population estimates are available for 9 species under NMFS's jurisdiction that could potentially be affected by Level B harassment over the course of the IHA. These species include the minke, Arnoux's beaked, Cuvier's beaked, Gray's beaked, Shepherd's beaked, and strap-toothed beaked whales, and Peale's and southern right whale dolphins and spectacled porpoises. Minke whales occur throughout the North Pacific Ocean and North Atlantic Ocean and the dwarf sub-species occurs in the Southern Hemisphere (Jefferson
NMFS makes its small numbers determination based on the number of marine mammals that will be taken relative to the populations of the affected species or stocks. The authorized take estimates all represent small numbers relative to the affected species or stock size (i.e., all are less than or equal to 5%). Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks. See Table 5 for the authorized take numbers of marine mammals.
Of the species of marine mammals that may occur in the survey area, six are listed as endangered under the ESA: The southern right, humpback, sei, fin, blue, and sperm whales. Under section 7 of the ESA, NSF, on behalf of ASC and two other research institutions, initiated formal consultation with the NMFS, Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, on this low-energy seismic survey. NMFS's Office of Protected Resources, Permits and Conservation Division, initiated and engaged in formal consultation under section 7 of the ESA with NMFS's Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, on the issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. These two consultations were consolidated and addressed in a single Biological Opinion addressing the direct and indirect effects of these independent actions. In September 2014, NMFS issued a Biological Opinion that concluded that the action is not likely to jeopardize the continued existence of the six listed cetaceans that may occur in the survey area and included an Incidental Take Statement (ITS) incorporating the requirements of the IHA as Terms and Conditions of the ITS. Compliance with those Terms and Conditions is likewise a mandatory requirement of the IHA. The Biological Opinion also concluded that designated critical habitat of these species does not occur in the action area and would not be affected by the survey.
With NSF and ASC's complete IHA application, NSF and ASC provided NMFS an “Initial Environmental Evaluation/Environmental Assessment to Conduct a Study of the Role of the Central Scotia Sea and North Scotia Ridge in the Onset and Development of the Antarctic Circumpolar Current,” (IEE/EA), prepared by AECOM on behalf of NSF and ASC. The IEE/EA analyzes the direct, indirect, and cumulative environmental impacts of the planned specified activities on marine mammals, including those listed as threatened or endangered under the ESA. NMFS, after review and evaluation of the NSF and ASC IEE/EA for consistency with the regulations published by the Council of Environmental Quality (CEQ) and NOAA Administrative Order 216-6, Environmental Review Procedures for Implementing the National Environmental Policy Act, prepared an independent Environmental Assessment titled “Environmental Assessment on the Issuance of an Incidental Harassment Authorization to the National Science Foundation and Antarctic Support Contract to Take Marine Mammals by Harassment Incidental to a Low-Energy Marine Geophysical Survey in the Scotia Sea and South Atlantic Ocean, September to October 2014.” NMFS has determined that the issuance of the IHA is not likely to result in significant impacts on the human environment and issued a Finding of No Significant Impact (FONSI).
NMFS has issued an IHA to NSF and ASC for conducting a low-energy seismic survey in the Scotia Sea and southern Atlantic Ocean, incorporating the previously mentioned mitigation, monitoring, and reporting requirements.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the Partnership for Interdisciplinary Study of Coastal Oceans (PISCO) at the University of California (UC) Santa Cruz for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to rocky intertidal monitoring surveys. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to PISCO to incidentally take, by Level B harassment only, marine mammals during the specified activity.
Comments and information must be received no later than November 7, 2014.
Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
An electronic copy of the application containing a list of the references used in this document and associated Environmental Assessment (EA) may be
Candace Nachman, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking, other means of effecting the least practicable impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On July 30, 2014, NMFS received an application from PISCO for the taking of marine mammals incidental to rocky intertidal monitoring surveys along the Oregon and California coasts. NMFS determined that the application was adequate and complete on August 22, 2014. In December 2012, NMFS issued a 1-year IHA to PISCO to take marine mammals incidental to these same proposed activities (77 FR 72327, December 5, 2012). In December 2013, NMFS issued a second 1-year IHA to PISCO to take marine mammals incidental to these same proposed activities (78 FR 79403, December 30, 2013). The 2013 IHA expires on December 16, 2014.
The research group at UC Santa Cruz operates in collaboration with two large-scale marine research programs: PISCO and the Multi-agency Rocky Intertidal Network. The research group at UC Santa Cruz (PISCO) is responsible for many of the ongoing rocky intertidal monitoring programs along the Pacific coast. Monitoring occurs at rocky intertidal sites, often large bedrock benches, from the high intertidal to the water's edge. Long-term monitoring projects include Community Structure Monitoring, Intertidal Biodiversity Surveys, Marine Protected Area Baseline Monitoring, Intertidal Recruitment Monitoring, and Ocean Acidification. Research is conducted throughout the year along the California and Oregon coasts and will continue indefinitely. Most sites are sampled one to two times per year over a 4-6 hour period during a negative low tide series. This IHA, if issued, though, would only be effective for a 12-month period. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: presence of survey personnel near pinniped haulout sites and approach of survey personnel towards hauled out pinnipeds. Take, by Level B harassment only, of individuals of California sea lions (
PISCO proposes to continue rocky intertidal monitoring work that has been ongoing for 20 years. PISCO focuses on understanding the nearshore ecosystems of the U.S. west coast through a number of interdisciplinary collaborations. The program integrates long-term monitoring of ecological and oceanographic processes at dozens of sites with experimental work in the lab and field. A short description of each project is contained here. Additional information can be found in PISCO's application (see
PISCO's research is conducted throughout the year. Most sites are sampled one to two times per year over a 1-day period (4-6 hours per site) during a negative low tide series. Due to the large number of research sites, scheduling constraints, the necessity for negative low tides and favorable weather/ocean conditions, exact survey dates are variable and difficult to predict. Table 1 in PISCO's application (see
Sampling sites occur along the California and Oregon coasts. Exact locations of sampling sites can be found in Tables 1 through 3 of PISCO's application (see
Community Structure Monitoring involves the use of permanent photoplot quadrats which target specific algal and invertebrate assemblages (e.g. mussels, rockweeds, barnacles). Each photoplot is photographed and scored for percent cover. The Community Structure Monitoring approach is based largely on surveys that quantify the percent cover and distribution of algae and invertebrates that constitute these communities. This approach allows researchers to quantify both the patterns of abundance of targeted species, as well as characterize changes in the communities in which they reside. Such information provides managers with insight into the causes and consequences of changes in species abundance. Each Community Structure site is surveyed over a 1-day period during a low tide series one to two times a year. Sites, location, number of times sampled per year, and typical sampling months for each site are presented in Table 1 in PISCO's application (see
Biodiversity Surveys, which are part of a long-term monitoring project and
In September 2007, the state of California began establishing a network of Marine Protected Areas along the California coast as part of the Marine Life Protection Act (MLPA). Under baseline monitoring programs funded by Sea Grant and the Ocean Protection Council, PISCO established additional intertidal monitoring sites in the Central Coast, North Central Coast, and South Coast study regions. Six additional sites will be established and sampled in the North Coast study region during 2015 (see Table 3 in PISCO's application). Baseline characterization of newly established areas involves sampling of these new sites, as well as established sites both within and outside of marine protected areas. These sites were sampled using existing Community Structure and Biodiversity protocols for consistency. Resampling of these sites may take place as part of future marine protected area evaluation.
The intertidal zones where PISCO conducts intertidal monitoring are also areas where pinnipeds can be found hauled out on the shore at or adjacent to some research sites. Accessing portions of the intertidal habitat may cause incidental Level B (behavioral) harassment of pinnipeds through some unavoidable approaches if pinnipeds are hauled out directly in the study plots or while biologists walk from one location to another. No motorized equipment is involved in conducting these surveys.
Several pinniped species can be found along the California and Oregon coasts. The three that are most likely to occur at some of the research sites are California sea lion, harbor seal, and northern elephant seal. On rare occasions, PISCO researchers have seen very small numbers (i.e., five or fewer) of Steller sea lions at one of the sampling sites. These sightings are rare. Therefore, encounters are not expected. However, if Steller sea lions are sighted before approaching a sampling site, researchers will abandon approach and return at a later date. For this reason, this species is not considered further in this proposed IHA notice.
We refer the public to Carretta
Northern elephant seals are not listed as threatened or endangered under the Endangered Species Act (ESA), nor are they categorized as depleted under the MMPA. The estimated population of the California breeding stock is approximately 124,000 animals with a minimum estimate of 74,913 (Carretta
Northern elephant seals range in the eastern and central North Pacific Ocean, from as far north as Alaska and as far south as Mexico. Northern elephant seals spend much of the year, generally about nine months, in the ocean. They are usually underwater, diving to depths of about 330-800 m (1,000-2,500 ft) for 20- to 30-minute intervals with only short breaks at the surface. They are rarely seen out at sea for this reason. While on land, they prefer sandy beaches.
Northern elephant seals breed and give birth in California (U.S.) and Baja California (Mexico), primarily on offshore islands (Stewart
During PISCO research activities, the maximum number of northern elephant seals observed at a single site was at least 10 adults plus 10-20 sub-adults and pups. These were observed offshore of Piedras Blancas. One adult elephant seal has been observed at Pigeon Point. At other sites, elephant seals are very rarely observed during research activities.
California sea lions are not listed as threatened or endangered under the ESA, nor are they categorized as depleted under the MMPA. The California sea lion is now a full species, separated from the Galapagos sea lion (
California sea lion breeding areas are on islands located in southern California, in western Baja California, Mexico, and the Gulf of California. During the breeding season, most California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to the San Miguel Islands and the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente (Carretta
A 2005 haul-out count of California sea lions between the Oregon/California border and Point Conception as well as the Channel Islands found 141,842 individuals (Carretta
Pacific harbor seals are not listed as threatened or endangered under the ESA, nor are they categorized as depleted under the MMPA. The estimated population of the California stock of Pacific harbor seals is approximately 30,196 animals with a minimum estimated population size of 26,667 (Carretta
The animals inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. Pacific harbor seals are divided into two subspecies:
In California, over 500 harbor seal haulout sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry
At several sites, harbor seals are often observed and have the potential to be disturbed by researchers accessing or sampling the site. The largest number of harbor seals occurs at Hopkins where often 20-30 adults and 10-15 pups are hauled-out on a small beach adjacent to the sampling site.
California (southern) sea otters (
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., personnel presence) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of a take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented, and how either of those will shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Proposed Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.
The appearance of researchers may have the potential to cause Level B harassment of any pinnipeds hauled out at sampling sites. Although marine mammals are never deliberately approached by survey personnel, approach may be unavoidable if pinnipeds are hauled out in the immediate vicinity of the permanent study plots. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of researchers (e.g., turning the head, assuming a more upright posture) to flushing from the haul-out site into the water. NMFS does not consider the lesser reactions to constitute behavioral harassment, or Level B harassment takes, but rather assumes that pinnipeds that move greater than 1 m (3.3 ft) or change the speed or direction of their movement in response to the presence of researchers are behaviorally harassed, and thus subject to Level B taking. Animals that respond to the presence of researchers by becoming alert, but do not move or change the nature of locomotion as described, are not considered to have been subject to behavioral harassment.
Numerous studies have shown that human activity can flush harbor seals off haulout sites (Allen
There are three ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. All three are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus, an occurrence that is not expected at the proposed sampling sites. The three situations are (1) falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of elephant seal pups by large males during a stampede.
Because hauled-out animals may move towards the water when disturbed, there is the risk of injury if animals stampede towards shorelines with precipitous relief (e.g., cliffs). However, while cliffs do exist along the coast, shoreline habitats near the abalone study sites are of steeply sloping rocks with unimpeded and non-obstructive access to the water. If disturbed, hauled-out animals in these situations may move toward the water without risk of encountering barriers or hazards that would otherwise prevent them from leaving the area. In these circumstances, the risk of injury, serious injury, or death to hauled-out animals is very low. Thus, research activity poses no risk that disturbed animals may fall and be injured or killed as a result of disturbance at high-relief locations.
The only habitat modification associated with the proposed activity is the placement of permanent bolts and other sampling equipment in the intertidal. Bolts are installed during the set-up of a site and, at existing sites, this has already occurred. In some instances, bolts will need to be replaced or installed for new plots. Bolts are 7.6 to 12.7 cm (2 to 5 in) long, stainless steel 1 cm (3/8 in) Hex or Carriage bolts. They are installed by drilling a hole with a battery powered DeWalt 24 volt rotary hammer drill with a 1 cm (3/8 in) bit. The bolts protrude 1.3-7.6 cm (0.5-3 in) above the rock surface and are held in place with marine epoxy. Although the drill does produce noticeable noise, researchers have never observed an instance where near-by or offshore marine mammals were disturbed by it. Any marine mammal at the site would likely be disturbed by the presence of researchers and retreat to a distance where the noise of the drill would not increase the disturbance. In most instances, wind and wave noise also
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
PISCO proposes to implement several mitigation measures to reduce potential take by Level B (behavioral disturbance) harassment. Measures include: (1) Conducting slow movements and staying close to the ground to prevent or minimize stampeding; (2) avoiding loud noises (i.e., using hushed voices); (3) avoiding pinnipeds along access ways to sites by locating and taking a different access way and vacating the area as soon as sampling of the site is completed; (4) monitoring the offshore area for predators (such as killer whales and white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters; (5) using binoculars to detect pinnipeds before close approach to avoid being seen by animals; (6) only flushing pinnipeds if they are located in the sampling plots and there are no other means to accomplish the survey (however, flushing must be done slowly and quietly so as not to cause a stampede); (7) no intentional flushing if pups are present at the sampling site; and (8) rescheduling sampling if Steller sea lions are present at the site.
The methodologies and actions noted in this section will be utilized and included as mitigation measures in any issued IHA to ensure that impacts to marine mammals are mitigated to the lowest level practicable. The primary method of mitigating the risk of disturbance to pinnipeds, which will be in use at all times, is the selection of judicious routes of approach to study sites, avoiding close contact with pinnipeds hauled out on shore, and the use of extreme caution upon approach. In no case will marine mammals be deliberately approached by survey personnel, and in all cases every possible measure will be taken to select a pathway of approach to study sites that minimizes the number of marine mammals potentially harassed. In general, researchers will stay inshore of pinnipeds whenever possible to allow maximum escape to the ocean. Each visit to a given study site will last for approximately 4-6 hours, after which the site is vacated and can be re-occupied by any marine mammals that may have been disturbed by the presence of researchers. By arriving before low tide, worker presence will tend to encourage pinnipeds to move to other areas for the day before they haul out and settle onto rocks at low tide.
PISCO will suspend sampling and monitoring operations immediately if an injured marine mammal is found in the vicinity of the project area and the monitoring activities could aggravate its condition.
NMFS has carefully evaluated PISCO's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. PISCO submitted a marine mammal monitoring plan as part of the IHA application. It can be found in Section 13 of the application. The plan may be modified or supplemented based on comments or new information
Monitoring measures proposed by the applicant or prescribed by NMFS should accomplish one or more of the following top-level goals:
1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action, i.e., presence, abundance, distribution, and/or density of species.
2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (e.g. sound or visual stimuli), through better understanding of one or more of the following: the action itself and its environment (e.g. sound source characterization, propagation, and ambient noise levels); the affected species (e.g. life history or dive pattern); the likely co-occurrence of marine mammal species with the action (in whole or part) associated with specific adverse effects; and/or the likely biological or behavioral context of exposure to the stressor for the marine mammal (e.g. age class of exposed animals or known pupping, calving or feeding areas).
3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible, e.g., at what distance or received level).
4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: the long-term fitness and survival of an individual; or the population, species, or stock (e.g. through effects on annual rates of recruitment or survival).
5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (e.g., through characterization of longer-term contributions of multiple sound sources to rising ambient noise levels and assessment of the potential chronic effects on marine mammals).
6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.
7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.
8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals.
PISCO can add to the knowledge of pinnipeds in California and Oregon by noting observations of: (1) unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
Proposed monitoring requirements in relation to PISCO's rocky intertidal monitoring will include observations made by the applicant. Information recorded will include species counts (with numbers of pups/juveniles when possible), numbers of observed disturbances, and descriptions of the disturbance behaviors during the monitoring surveys, including location, date, and time of the event. In addition, observations regarding the number and species of any marine mammals observed, either in the water or hauled out, at or adjacent to the site, will be recorded as part of field observations during research activities. Observations of unusual behaviors, numbers, or distributions of pinnipeds will be reported to NMFS so that any potential follow-up observations can be conducted by the appropriate personnel. In addition, observations of tag-bearing pinniped carcasses as well as any rare or unusual species of marine mammals will be reported to NMFS. Information regarding physical and biological conditions pertaining to a site, as well as the date and time that research was conducted will also be noted.
If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of any other marine mammal occurs, and such action may be a result of the proposed research, PISCO will suspend research activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.
A draft final report must be submitted to NMFS Office of Protected Resources within 60 days after the conclusion of the 2014-2015 field season or 60 days prior to the start of the next field season if a new IHA will be requested. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. A final report must be submitted to the Director of the NMFS Office of Protected Resources and to the NMFS West Coast Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report.
PISCO complied with the mitigation and monitoring that we required under the IHA issued in December 2013. In compliance with the IHA, PISCO submitted a report detailing the activities and marine mammal monitoring they conducted. The IHA required PISCO to conduct counts of pinnipeds present at study sites prior to approaching the sites and to record species counts and any observed reactions to the presence of the researchers.
From December 17, 2013, through August 31, 2014, PISCO researchers conducted rocky intertidal sampling at 65 sites during 50 days (see Table 6 in PISCO's 2013-2014 report). During this time period, no injured, stranded, or dead pinnipeds were observed. Tables 7, 8, and 9 in PISCO's monitoring report (see
Based on the results from the previous monitoring report, we conclude that these results support our original findings that the mitigation measures set forth in the 2013-2014 IHA effected the least practicable impact on the species or stocks. During periods of low tide (e.g., when tides are 0.6 m (2 ft) or less and low enough for pinnipeds to haul-out), we would expect the pinnipeds to return to the haulout site within 60 minutes of the disturbance (Allen
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. The proposed mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by injury, serious injury, or mortality is considered remote. Animals hauled out close to the actual survey sites may be disturbed by the presence of biologists and may alter their behavior or attempt to move away from the researchers.
As discussed earlier, NMFS considers an animal to have been harassed if it moved greater than 1 m (3.3 ft) in response to the researcher's presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. Animals that became alert without such movements were not considered harassed.
For the purpose of this proposed IHA, only Oregon and California sites that are frequently sampled and have a marine mammal presence during sampling were included in take estimates. Sites where only Biodiversity Surveys are conducted were not included due to the infrequency of sampling and rarity of occurrences of pinnipeds during sampling. In addition, Steller sea lions are not included in take estimates as they will not be disturbed by researchers or research activities since activities will not occur or will be suspended if Steller sea lions are present. A small number of harbor seal and northern elephant seal pup takes are anticipated as pups may be present at several sites during spring and summer sampling.
Takes estimates are based on marine mammal observations from each site. Marine mammal observations are done as part of PISCO site observations, which include notes on physical and biological conditions at the site. The maximum number of marine mammals, by species, seen at any given time throughout the sampling day is recorded at the conclusion of sampling. A marine mammal is counted if it is seen on access ways to the site, at the site, or immediately up-coast or down-coast of the site. Marine mammals in the water immediately offshore are also recorded. Any other relevant information, including the location of a marine mammal relevant to the site, any unusual behavior, and the presence of pups is also noted.
These observations formed the basis from which researchers with extensive knowledge and experience at each site estimated the actual number of marine mammals that may be subject to take. In most cases the number of takes is based on the maximum number of marine mammals that have been observed at a site throughout the history of the site (1-3 observation per year for 5-10 years or more). Section 6 in PISCO's application outlines the number of visits per year for each sampling site and the potential number of pinnipeds anticipated to be encountered at each site. Table 4 in PISCO's application outlines the number of potential takes per site (see
Based on this information, NMFS proposes to authorize the take, by Level B harassment only, of 55 California sea lions, 183 harbor seals, and 30 northern elephant seals. These numbers are considered to be maximum take estimates; therefore, actual take may be slightly less if animals decide to haul out at a different location for the day or animals are out foraging at the time of the survey activities.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
No injuries or mortalities are anticipated to occur as a result of PISCO's rocky intertidal monitoring, and none are proposed to be authorized. The behavioral harassments that could occur would be of limited duration, as researchers only conduct sampling one to two times per year at each site for a total of 4-6 hours per sampling event. Therefore, disturbance will be limited to a short duration, allowing pinnipeds to reoccupy the sites within a short amount of time.
The risk of marine mammal injury, serious injury, or mortality associated with rocky intertidal monitoring increases somewhat if disturbances occur during breeding season. These situations present increased potential for mothers and dependent pups to become separated and, if separated pairs do not quickly reunite, the risk of mortality to pups (through starvation) may increase. Separately, adult male elephant seals may trample elephant seal pups if disturbed, which could potentially result in the injury, serious injury, or mortality of the pups. The risk of either of these situations is greater in the event of a stampede.
Very few pups are anticipated to be encountered during the proposed monitoring surveys. No California sea lion pups are anticipated to be encountered, as rookery sites are typically limited to the islands. A very small number of harbor seal and northern elephant seal pups have been observed at a couple of the proposed monitoring sites over the past years. Though elephant seal pups are occasionally present when researchers visit survey sites, risk of pup mortalities is very low because elephant seals are far less reactive to researcher presence than the other two species. Further, pups are typically found on sand beaches, while study sites are located in the rocky intertidal zone, meaning that there is typically a buffer between researchers and pups. Finally, the caution used by researchers in approaching sites generally precludes the possibility of behavior, such as stampeding, that could result in extended separation of mothers and dependent pups or trampling of pups. No research would occur where separation of mother and her nursing pup or crushing of pups can become a concern.
Typically, even those reactions constituting Level B harassment would result at most in temporary, short-term disturbance. In any given study season, researchers will visit sites one to two times per year for a total of 4-6 hours per visit. Therefore, disturbance of pinnipeds resulting from the presence of researchers lasts only for short periods of time and is separated by significant amounts of time in which no disturbance occurs. Because such disturbance is sporadic, rather than chronic, and of low intensity, individual
Some of the pinniped species may use some of the sites during certain times of year to conduct pupping and/or breeding. However, some of these species prefer to use the offshore islands for these activities. At the sites where pups may be present, PISCO has proposed to implement certain mitigation measures, such as no intentional flushing if dependent pups are present, which will avoid mother/pup separation and trampling of pups.
Of the three marine mammal species anticipated to occur in the proposed activity areas, none are listed under the ESA. Taking into account the mitigation measures that are planned, effects to marine mammals are generally expected to be restricted to short-term changes in behavior or temporary abandonment of haulout sites, falling within the MMPA definition of “Level B harassment.” Pinnipeds are not expected to permanently abandon any area that is surveyed by researchers, as is evidenced by continued presence of pinnipeds at the sites during annual monitoring counts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation and monitoring measures, NMFS preliminarily finds that the total marine mammal take from PISCO's rocky intertidal monitoring program will not adversely affect annual rates of recruitment or survival and therefore will have a negligible impact on the affected species or stocks.
Table 1 in this document presents the abundance of each species or stock, the proposed take estimates, the percentage of the affected populations or stocks that may be taken by harassment, and the species or stock trends. Based on these estimates, PISCO would take less than 1.1% of each species or stock. Because these are maximum estimates, actual take numbers are likely to be lower, as some animals may select other haulout sites the day the researchers are present.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
None of the marine mammals for which incidental take is proposed are listed as threatened or endangered under the ESA. NMFS' Permits and Conservation Division worked with the NMFS Southwest Regional Office to ensure that Steller sea lions would be avoided and incidental take would not occur. Therefore, NMFS has determined that issuance of the proposed IHA to PISCO under section 101(a)(5)(D) of the MMPA will have no effect on species listed as threatened or endangered under the ESA.
In 2012, we prepared an EA analyzing the potential effects to the human environment from conducting rocky intertidal surveys along the California and Oregon coasts and issued a Finding of No Significant Impact (FONSI) on the issuance of an IHA for PISCO's rocky intertidal surveys in accordance with section 6.01 of the NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999). PISCO's proposed activities and impacts for 2014-2015 are within the scope of our 2012 EA and FONSI. We have reviewed the 2012 EA and determined that there are no new direct, indirect, or cumulative impacts to the human and natural environment associated with the IHA requiring evaluation in a supplemental EA and we, therefore, intend to reaffirm the 2012 FONSI.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to PISCO for the take of marine mammals incidental to conducting rocky intertidal monitoring research activities, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.
This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
1. This IHA is valid from December 17, 2014, through December 16, 2015.
2. This IHA is valid only for specified activities associated with rocky intertidal monitoring surveys at specific sites along the U.S. California and Oregon coasts.
3. General Conditions
a. A copy of this IHA must be in the possession of personnel operating under the authority of this authorization.
b. The incidental taking of marine mammals, by Level B harassment only, is limited to the following species along the Oregon and California coasts:
i. 183 harbor seal (
ii. 60 California sea lion (
iii. 30 northern elephant seal (
c. The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) of the IHA or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
4. Mitigation Measures: In order to ensure the least practicable impact on the species listed in condition 3(b), the holder of this IHA is required to implement the following mitigation measures:
a. Field biologists must approach study sites cautiously and quietly, such that any disturbance of pinnipeds is minimized. The pathway and rate of approach must be chosen judiciously, avoiding to the extent possible any deliberate approach of hauled-out pinnipeds. If deliberate approach is unavoidable, field biologists must approach gradually such that stampeding of pinnipeds is avoided. Specific care must be taken to avoid any disturbance that may place pinniped pups at risk. Site visits should be limited to no more than 6 hours in the absence of extenuating circumstances, and personnel shall vacate the area as soon as sampling of the site is completed.
b. Staff shall use binoculars to detect pinnipeds before close approach to avoid being seen by the animals.
c. Staff shall monitor the offshore area for predators (such as killer whales and white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters.
d. Staff shall reschedule work at sites where pups are present, unless other means to accomplishing the work can be done without causing disturbance to mothers and dependent pups.
e. Staff shall only flush pinnipeds if they are located in the sampling plots and there are no other means to accomplish the survey (however, flushing must be done slowly and quietly so as not to cause a stampede).
f. No intentional flushing if pups are present at the sampling site.
g. Sampling shall be rescheduled if Steller sea lions are present at the study site.
5. Monitoring: The holder of this IHA is required to conduct monitoring of marine mammals present at study sites prior to approaching the sites.
a. Information to be recorded shall include the following:
i. Species counts (with numbers of pups/juveniles); and
ii. Numbers of disturbances, by species and age, according to a three-point scale of intensity including (1) Head orientation in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, or changing from a lying to a sitting position and/or slight movement of less than 1 m; “alert”; (2) Movements in response to or away from disturbance, typically over short distances (1-3 m) and including dramatic changes in direction or speed of locomotion for animals already in motion; “movement”; and (3) All flushes to the water as well as lengthier retreats (>3 m); “flight”.
6. Reporting: The holder of this IHA is required to:
a. Report observations of unusual behaviors, numbers, or distributions of pinnipeds, or of tag-bearing carcasses, to NMFS Southwest Fisheries Science Center (SWFSC).
b. Submit a draft monitoring report to NMFS Office of Protected Resources within 60 days after the conclusion of the 2014-2015 field season or 60 days prior to the start of the next field season if a new IHA will be requested. A final report shall be prepared and submitted within 30 days following resolution of any comments on the draft report from NMFS. This report must contain the informational elements described above, at minimum.
c. Reporting injured or dead marine mammals:
i. In the event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, PISCO shall immediately cease the specified activities and report the incident to the Office of Protected Resources (301-427-8401), NMFS, and the Southwest Regional Stranding Coordinator (562-980-3230), NMFS. The report must include the following information:
1. Time and date of the incident;
2. Description of the incident;
3. Environmental conditions (
4. Description of all marine mammal observations in the 24 hours preceding the incident;
5. Species identification or description of the animal(s) involved;
6. Fate of the animal(s); and
7. Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with PISCO to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. PISCO may not resume the activities until notified by NMFS.
ii. In the event that an injured or dead marine mammal is discovered and it is determined that the cause of the injury or death is unknown and the death is relatively recent (
iii. In the event that an injured or dead marine mammal is discovered and it is determined that the injury or death is not associated with or related to the activities authorized in the IHA (
7. This IHA may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.
NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for PISCO's proposed rocky intertidal monitoring program. Please include with your comments any supporting data or literature citations to help inform our final decision on PISCO's request for an MMPA authorization.
Bureau of Consumer Financial Protection.
Notice of proposed plan with request for public comment.
Consistent with Executive Order 13166 (Aug. 11, 2000), the Consumer Financial Protection Bureau (Bureau or CFPB) is committed to providing persons with limited English proficiency (LEP) meaningful access to its programs and services. The Language Access Plan describes the Bureau's policy and how the Bureau's current language access activities are implemented across all of the Bureau's operations, programs and services. The Bureau will review this plan every three years and revise it as necessary. The public is invited to comment on the Bureau's programs and activities available to LEP persons and on steps that the Bureau could take to ensure that LEP persons have meaningful access to such services.
Comments must be received on or before January 6, 2015 to be assured of consideration.
You may submit comments regarding the Proposed Language Access Plan, identified by title and by Docket No. CFPB-2014-0022, by any of the following methods:
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All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Do not include sensitive personal information such as account numbers or Social Security numbers. Comments will not be edited to remove any identifying or contact information, such as name and address information, email addresses, or telephone numbers.
For general inquiries, submission process questions or any additional information, please contact Monica Jackson, Office of the Executive Secretary, at 202-435-7275. For information about the Proposed Language Access Plan, please contact Dubis Correal, Office of Financial Education, at 202-435-7937.
The Dodd-Frank Wall Street Reform and Consumer Protection Act
Listening and responding to consumers is central to the Bureau's purpose of ensuring that all consumers have access to consumer financial products and services. Since its inception, the Bureau has provided consumers with numerous ways to make their voices heard. Consumers nationwide have engaged with the Bureau through public field hearings, listening events, roundtables, town halls, the Bureau's Web site, consumerfinance.gov, and the Bureau's Consumer Response function. The Bureau has also sought input from a range of financial education stakeholders about challenges consumers face, effective tools in overcoming those challenges, and what the Bureau can do to improve the financial decision-making process of consumers to help them better navigate the marketplace of financial products and services.
The Bureau understands that this engagement is incomplete without efforts to include Limited English Proficiency (LEP) persons (individuals who do not speak English as their primary language and who have a limited ability to speak, write, or understand English). According to a 2010 Census Report, there are over 24 million people in the United States who do not speak English “very well.” This includes people who classify themselves as speaking English “not well” and people who do not speak English at all. Studies by Federal agencies and other stakeholders have highlighted that receipt of materials in consumers' native languages is essential to increasing these consumers' knowledge about financial products and services.
For instance, a study conducted by the FDIC
Consistent with Executive Order 13166 (Aug. 11, 2000) and the Bureau's mission, the Bureau proposes to adopt the Proposed Language Access Plan to address meaningful access to Bureau services for LEP persons. The Bureau
The Bureau considered the following factors in drafting the proposed Language Access Plan: (1) The number or proportion of LEP persons who would not receive the Bureau's services absent efforts to remove language barriers; (2) The frequency and number of contacts by LEP persons with the Bureau's services; (3) The nature and importance of the services provided by the Bureau to people's lives; and (4) The resources available to the Bureau (including cost-benefit analysis) to provide services to LEP persons. Under the proposed Language Access Plan, the Bureau provides LEP individuals with access to information, services, activities, and programs through translating critical consumer-facing documents into select foreign languages and handling complaints from consumers about financial consumer products and services in over 180 languages. The Bureau invites public comment on the proposed Language Access Plan.
The public is invited to comment on the Bureau's programs and activities that are available to LEP persons and on steps the Bureau could take to ensure that LEP persons have meaningful access to such services. The Bureau will use the information gathered from this notice and other outreach efforts to improve access to these programs and activities.
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This Proposed Language Access Plan articulates the Bureau's commitment to providing persons with limited English proficiency meaningful access to its programs and services. It is therefore exempt from the notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b).
Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a).
The Bureau has determined that this Proposed Language Access Plan does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered
The text of the Proposed Language Access Plan follows:
Consistent with Executive Order 13166 (Aug. 11, 2000), this document establishes the Language Access Plan of the Consumer Financial Protection Bureau (Bureau or CFPB) for addressing meaningful access to CFPB services for Limited English Proficiency (LEP) persons (individuals who do not speak English as their primary language and who have a limited ability to speak, write, or understand English).
The CFPB is committed to improving the accessibility of its services to LEP persons. In developing its Language Access Plan, the CFPB engaged stakeholders to understand the opportunities to serve LEP persons and to ensure LEP individuals have access to the CFPB's programs and services.
To ensure meaningful access, the Bureau considers the following factors: (1) The number or proportion of LEP persons who would not receive the Bureau's services absent efforts to remove language barriers; (2) The frequency and number of contact by LEP persons with the Bureau's services; (3) The nature and importance of the services provided by the Bureau to people's lives; and (4) The resources available to the Bureau (including cost-benefit analysis) to provide services to LEP persons.
The CFPB provides LEP individuals with access to information, services, activities, and programs through the following activities:
The Bureau translates critical consumer-facing documents into the most frequently encountered languages, as established by U.S. Census Bureau data or based on specific issues affecting a particular group of LEP individuals. The Bureau publishes a wider range of consumer-facing documents in Spanish than other frequently encountered languages.
Translating public-facing documents into the languages most frequently encountered
The Bureau's Office of Consumer Response (Consumer Response) hears directly from consumers about the challenges they face in the marketplace and brings consumers' concerns to the attention of consumer financial product or service providers. Consumer Response currently accepts complaints about credit cards, mortgages, bank accounts and services, private student loans, vehicle and other consumer loans, credit reporting, money transfers, debt collection, payday loans, prepaid cards, credit repair and debt settlement services, title and pawn loans, and virtual currencies. The CFPB's contact centers can assist consumers with complaints in over 180 languages, and consumers have the option to receive written communications in Spanish. The contact centers also accept inquiries from consumers on various consumer financial products and services as well as CFPB news and operations. The Bureau works to respond to these inquiries or refers consumers to other regulators and resources, as needed.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by November 7, 2014.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management
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 Mr. Licari at: Publication Collections Program, WHS/ESD Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Defense Acquisition Regulations System, DoD.
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by November 7, 2014.
Written comments and recommendations on the proposed information collection should be sent to Ms. 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 Mr. Licari at: Publication Collections Program, WHS/ESD Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Department of the Navy, DoD.
Notice of partially closed meeting.
The U.S. Naval Academy Board of Visitors will meet to make such inquiry, as the Board shall deem necessary, into the state of morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of the Naval Academy. The executive session of this meeting from 11 a.m. to 12 p.m. on December 1, 2014, will include discussions of new and pending administrative/minor disciplinary infractions and non-judicial punishments involving the Midshipmen attending the U.S. Naval Academy to include but not limited to individual honor/conduct violations within the Brigade; the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. For this reason, the executive session of this meeting will be closed to the public.
The open session of the meeting will be held on December 1, 2014, from 8 a.m. to 11 a.m. The closed session of this meeting will be the executive session held from 11 a.m. to 12 p.m.
The meeting will be held at the U.S. Naval Academy, Annapolis, MD. The meeting will be handicap accessible.
Lieutenant Commander Eric Madonia, USN, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, 410-293-1503.
This notice of meeting is provided per the Federal Advisory Committee Act, as amended (5 U.S.C. App.). The executive session of the meeting from 11 a.m. to
Institute of Education Sciences/National Center for Education Statistics (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before December 8, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Yumiko Sekino, 202-219-2046.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Data to inform the feasibility assessment will be obtained through surveys of school district preschool special education coordinators and state Section 619 coordinators, the subject of the current submission. Preschool special education coordinators in school districts and state Section 619 coordinators will provide information to address the study's overarching research question—whether there are promising curricula and interventions for preschool children with disabilities for which a large-scale effectiveness trial would be feasible and add value to the field. The district survey will be administered in a nationally representative sample of 1,200 school districts serving preschool children with disabilities as a 30-minute web survey. The state survey will be administered in all 50 states and the District of Columbia as a 10-minute editable PDF survey. Data collection for each survey will begin in April 2015.
The feasibility assessment will also be informed by use of extant data and conduct of an evidence review. In addition to collected survey data, extant data will provide information about preschool special education programs, the curricula and interventions that are available and supported by these programs, and the context in which curricula and interventions are delivered to inform decisions about key design elements. The evidence review will identify promising curricula and interventions for preschool children with disabilities and features about their implementation in schools.
Information obtained as part of the data collection for Phase I will be used to develop a publicly available report to provide educators and policymakers with nationally representative descriptive information about current preschool special education programs. If the Institute of Education Sciences (IES) decides to sponsor an RCT following the feasibility assessment, separate OMB packages will be submitted that request clearance for recruitment and data collection activities for the RCT.
Institute of Education Sciences, U.S. Department of Education.
Announcement of an open meeting.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the National Board for Education Sciences (NBES). The notice also describes the functions of the Committee. Notice of this meeting is required by Section 10(a) (2) of the Federal Advisory Committee Act and is intended to notify the public of their opportunity to attend the meeting.
The NBES meeting will be held on October 30, 2014, from 9:00 a.m. to 3:30 p.m. Eastern Standard Time.
80 F Street NW., Large Board Room, Washington, DC 20001
Ellie Pelaez, Designated Federal Official, NBES, U.S. Department of Education, 555 New Jersey Avenue NW., Room 600 E, Washington, DC 20208; phone: (202) 219-0644; fax: (202) 219-1402; email:
The Board meeting will resume from 10:30 to 12:00 p.m. when the Board will discuss “Research on Educating African American Males.” NBES Chair David Chard and Thomas Brock, Commissioner of the National Center for Education Research (NCER), will provide the opening remarks, followed by a panel discussion with researchers studying specific interventions. Roundtable discussion by board members will take place after the panel discussion. The meeting will break for lunch from 12:00 to 1:00 p.m.
From 1:00 p.m. to 3:00 p.m., the Board will consider the topic, “Higher Education Rating System.” Following opening remarks by the Department of Education's Under Secretary Ted Mitchell, a roundtable discussion of the topic will take place.
Closing remarks from Sue Betka, Acting Director of IES, and David Chard, will take place from 3:00 p.m. to 3:30 p.m., with adjournment scheduled for 3:30 p.m.
Section 116 of the Education Sciences Reform Act of 2002 (ESRA),
U.S. Department of Energy.
Designation of Performance Review Board Standing Register.
This notice provides the Performance Review Board Standing Register for the Department of Energy. This listing supersedes all previously published lists of PRB members.
This appointment is effective as of September 30, 2014.
U.S. Department of Energy.
Designation of Performance Review Board Chair.
This notice provides the Performance Review Board Chair designee for the Department of Energy. This listing supersedes all previously published lists of Performance Review Board Chair.
This appointment is effective as of September 30, 2014.
Dennis M. Miotla.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
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.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency.
Notice of Advisory Committee Teleconference.
Under the Federal Advisory Committee Act, Public Law 92463, the Environmental Protection Agency (EPA) gives notice of a public teleconference of the National Advisory Council for Environmental Policy and Technology (NACEPT). NACEPT provides advice to the EPA Administrator on a broad range of environmental policy, technology, and management issues. NACEPT members represent academia, industry, non-governmental organizations, and local, state, and tribal governments. The purpose of this committee meeting is for NACEPT to continue developing sustainability strategies to strengthen the Agency's core business principles and practices outlined in the FY2014-2018 EPA Strategic Plan. A copy of the meeting agenda will be posted at
NACEPT will hold a public teleconference on Monday, November 3, 2014, from 12:00 p.m. to 4:00 p.m. Eastern Standard Time.
The meeting will be held at the U.S. EPA, William Jefferson Clinton Federal Building East, 1201 Constitution Ave. NW., Room 1132, Washington, DC 20004.
Eugene Green, Acting Designated Federal Officer,
The meeting is open to the public with limited seating and requests to provide oral and/or written comments to NACEPT should be sent directly to Eugene Green by Monday, October 27, 2014.
In addition, members of the public wishing to participate in-person or via teleconference should follow the same procedure as noted above.
Environmental Protection Agency.
Notice of a public meeting.
The U.S. Environmental Protection Agency (EPA) is announcing a public meeting of the National Drinking Water Advisory Council (NDWAC) Lead and Copper Rule Working Group (LCRWG). The meeting is scheduled for November 12 and 13, 2014, in Arlington, VA. During this meeting, the LCRWG and the EPA will focus discussions on the Lead and Copper Rule revision issues associated with lead service line replacements.
The meeting on November 12, 2014, will be held from 9:00 a.m. to 5:00 p.m., eastern time, and on November 13, 2014, from 9:00 a.m. to 3:00 p.m., eastern time.
The meeting will be held at the Cadmus Group Inc., 1555 Wilson Blvd., Suite 300, Arlington, VA, and will be open to the public. All attendees must sign in with the security desk and show photo identification to enter the building.
For more information about this meeting or to request written materials contact Lameka Smith, Standards and Risk Management Division, Office of Ground Water and Drinking Water; by phone at (202) 564-1629 or by email at
Environmental Protection Agency (EPA).
Notice.
A simultaneous workshop and webinar on a regional test version of the Spatial Aquatic Model (SAM) will be held on October 29, 2014. This Notice announces the location and time for the meeting and provides a tentative list of topics to be covered in the meeting. With the development of SAM, EPA will be able to determine the magnitude, length, and duration of exposure to a chemical as well as where the exposure may occur.
The meeting will be held on October 29, 2014 from 8:30 a.m. to 1 p.m. Requests to participate in the meeting must be received on or before October 20, 2014.
To request accommodation of a disability, please contact the person listed under
The meeting will be held at the Environmental Protection Agency, Office of Pesticide Programs (OPP), One Potomac Yard (South Building), Fourth Floor Conference Room N4830, 2777 S. Crystal Drive, Arlington, VA 22202.
Nelson Thurman or Derek Scott, Environmental Fate and Effects Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone numbers: (703) 308-0465 or (703) 305-6627; fax number: 703-347-8011; email address:
You may be potentially affected by this action if you are required to conduct testing of chemical substances under the Toxic Substances Control Act (TSCA), the Federal Food, Drug, and Cosmetic Act (FFDCA), or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Agriculture, Forestry, Fishing and Hunting NAICS code 11
• Utilities NAICS code 22
• Professional, Scientific and Technical NAICS code 54
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0686, is available at
EPA is developing a Spatial Aquatic Model (SAM) to address the need for more spatial and temporal contexts for pesticide aquatic exposure assessments. The model will provide a way to estimate how often, how long, and where adverse impacts overlap spatially with populations at risk. EPA plans to introduce an alpha test version of SAM at the workshop/Webinar to allow interested parties to evaluate and comment on the model.
You may submit a request to participate in this meeting to the person listed under
The workshop/Webinar will provide an overview of the Spatial Aquatic Model, a description of the model and data components, contrasts with current OPP aquatic exposure models, and preliminary evaluations of model performance. The workshop will include a hands-on demonstration of the test model so that participants will be able to evaluate/test the model and provide feedback that can be used to update and improve the model. Participants will have an opportunity to provide comments to the Agency and participate in a follow-up Webinar in January 2015.
7 U.S.C. 136
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
10:00 a.m., Thursday, October 16, 2014.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (entry from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Sarah Stewart (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 23, 2014.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
Administration for Community Living and Office of the National Coordinator on Health Information Technology, Department of Health and Human Services.
Notice of public workshop; request for comments.
The Administration for Community Living (ACL) and the Office of the National Coordinator for Health Information Technology (ONC) of the U.S. Department of Health and Human Services announce the following workshop,
Using health IT to support person and family-centered planning can provide a path to improving communication and quality of health care and LTSS, and ensuring that the individual's preferences, priorities and goals are the foundation for that plan and are addressed across the spectrum of health care and LTSS settings. Health care LTSS providers play a critical role in this care continuum. However the pace of health IT adoption and interoperable communication varies across systems. Interoperable health IT systems that reach across settings and health care and community partners would not only enhance communication, transitional care, and care coordination activities currently underway within programs funded by the Affordable Care Act, but could also facilitate the development of an accessible, integrated, person-centered plan that would better allow individuals to achieve their goals, manage their services, and enhance their quality of life.
If you need special accommodations due to a disability, please contact Caroline Ryan (
To register to attend the public workshop in-person, please visit:
The deadline for submitting comments related to this public workshop is October 31, 2014.
Please submit comments to:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “General Administrative Procedures: Citizen Petitions; Petition for Reconsideration or Stay of Action; Advisory Opinions” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
On June 12, 2014, the Agency submitted a proposed collection of information entitled “General Administrative Procedures: Citizen Petitions; Petition for Reconsideration or Stay of Action; Advisory Opinions” to OMB for review and clearance under 44 U.S.C. 3507. 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. OMB has now approved the information collection and has assigned OMB control number 0910-0183. The approval expires on August 31, 2017. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Additional Criteria and Procedures for Classifying Over-the-Counter Drugs as Generally Recognized as Safe and Effective and Not Misbranded” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
On June 25, 2014, the Agency submitted a proposed collection of information entitled “Additional Criteria and Procedures for Classifying Over-the-Counter Drugs as Generally Recognized as Safe and Effective and Not Misbranded” to OMB for review and clearance under 44 U.S.C. 3507. 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. OMB has now approved the information collection and has assigned OMB control number 0910-0688. The approval expires on August 31, 2017. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined that LUPRON DEPOT (leuprolide acetate for depot suspension), Injectable 3.75 milligrams (mg)/vial, was not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for LUPRON DEPOT (leuprolide acetate for depot suspension), Injectable 3.75 mg/vial, if all other legal and regulatory requirements are met. However, in considering whether to file an ANDA for leuprolide acetate for depot suspension, future applicants are advised that they may not be able to obtain LUPRON DEPOT (leuprolide acetate for depot suspension), Injectable 3.75 mg/vial, for bioequivalence testing because the product has not been commercially available for a number of years. An ANDA applicant who is unable to obtain LUPRON DEPOT (leuprolide acetate for depot suspension), Injectable 3.75 mg/vial, for bioequivalence testing should contact the Office of Generic Drugs for a determination of what is necessary to show bioavailability and the same therapeutic effect.
Daniel Orr, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6208, Silver Spring, MD 20993-0002, 240-402-0979.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products under an ANDA procedure. ANDA applicants must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA).
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products with Therapeutic Equivalence Evaluations,” which is known generally as the “Orange Book.” Under FDA regulations, drugs are removed from the list if the Agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162).
A person may petition the Agency to determine, or the Agency may determine on its own initiative, whether a listed drug was withdrawn from sale for reasons of safety or effectiveness. This determination may be made at any time after the drug has been withdrawn from sale, but must be made prior to approving an ANDA that refers to the listed drug (§ 314.161). FDA may not approve an ANDA that does not refer to a listed drug.
LUPRON DEPOT (leuprolide acetate for depot suspension), Injectable 3.75 mg/vial, is the subject of NDA2001, held by Abbvie Endocrine, Inc. (Abbvie), and initially approved on October 22, 1990. LUPRON DEPOT is indicated for management of endometriosis, including pain relief and reduction of endometriotic lesions. LUPRON DEPOT, concomitantly with iron therapy, is also indicated for the preoperative hematologic improvement of patients with anemia caused by uterine leiomyomata.
In a report dated December 15, 1999, Abbvie notified FDA that LUPRON DEPOT (leuprolide acetate for depot suspension), Injectable 3.75 mg/vial, was being discontinued, and FDA moved the drug product to the “Discontinued Drug Product List” section of the Orange Book.
Terri Nataline, on behalf of Lachman Consultant Services, Inc., submitted a citizen petition dated November 25, 2013 (Docket No. FDA-2013-P-1609), under 21 CFR 10.30, requesting, in part, that the Agency determine whether LUPRON DEPOT, Injectable 3.75 mg/vial, was withdrawn from sale for reasons of safety or effectiveness.
After considering the citizen petition and reviewing Agency records and based on the information we have at this time, FDA has determined under § 314.161 that LUPRON DEPOT, Injectable 3.75 mg/vial, was not withdrawn for reasons of safety or effectiveness. The petitioner has identified no data or other information suggesting that LUPRON DEPOT, Injectable 3.75 mg/vial, was withdrawn for reasons of safety or effectiveness. We have carefully reviewed our files for records concerning the withdrawal of LUPRON DEPOT, Injectable 3.75 mg/vial, from sale. We have also independently evaluated relevant literature and data for possible postmarketing adverse events. We have reviewed the available evidence and determined that the products were not withdrawn from sale for reasons of safety or effectiveness.
Accordingly, the Agency will continue to list LUPRON DEPOT, Injectable 3.75 mg/vial, in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to LUPRON DEPOT, Injectable 3.75 mg/vial, may be approved by the Agency as long as they meet all other legal and regulatory requirements for the approval of ANDAs. If FDA determines that labeling for these drug products should be revised to meet current standards, the Agency will advise ANDA applicants to submit such labeling.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Critical Path Innovation Meetings.” This draft guidance describes a Critical Path Innovation Meeting (CPIM), a means by which FDA's Center for Drug Evaluation and Research (CDER) and investigators
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by December 8, 2014.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the guidance to
Alicia Stuart, Office of Translational Sciences, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 21, Rm. 4547, Silver Spring, MD 20993-0002, 301-796-3852.
FDA is announcing the availability of a draft guidance for industry entitled “Critical Path Innovation Meetings.” The draft guidance describes the purpose and scope of a CPIM and how to request such a meeting. A CPIM provides the opportunity to discuss a methodology or technology proposed by the meeting requester and for CDER to provide general advice on how the methodology or technology might enhance drug development. During a CPIM, CDER will identify some of the larger gaps in existing knowledge that requesters might consider addressing in the course of their work. The discussions and background information submitted through the CPIM are nonbinding on both FDA and CPIM requesters. The CPIM initiative meets Prescription Drug User Fee Act (PDUFA) V Reauthorization Goal IX.A, “Enhancing Regulatory Science and Expediting Drug Development” by “Promoting Innovation Through Enhanced Communication Between FDA and Sponsors During Drug Development.”
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on CPIMs. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This draft guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collection of information in 21 CFR part 312 (investigational new drug applications) has been approved under OMB control number 0910-0014. The collection of information in 21 CFR part 314 (new drug applications) has been approved under OMB control number 0910-0001. The collection of information resulting from formal meetings between interested persons and FDA has been approved under OMB control number 0910-0429.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “The Effect of Section 585 of the FD&C Act on Drug Product Tracing and Wholesale Drug Distributor and Third-Party Logistics Provider Licensing Standards and Requirements: Questions and Answers.” FDA is issuing these questions and answers to assist industry and State governments in understanding the effects of section 585 (Uniform National Policy) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) added by Title II of the Drug Quality and Security Act (DQSA), which was enacted on November 27, 2013, on State product tracing requirements and on standards, requirements, and regulations with respect to wholesale distributor and third-party logistics provider (3PL) licensing. Title II is also referred to as the Drug Supply Chain Security Act (DSCSA).
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit written or electronic comments on the draft guidance by December 8, 2014.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993-0002; or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New
Submit electronic comments on the draft guidance to
Office of Compliance, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-3100,
FDA is announcing the availability of a draft guidance for industry entitled “The Effect of Section 585 of the FD&C Act on Drug Product Tracing and Wholesale Drug Distributor and Third-Party Logistics Provider Licensing Standards and Requirements: Questions and Answers.” On November 27, 2013, the DSCSA (Title II of Pub. L.113-54) was signed into law. The DSCSA outlines critical steps to build an electronic, interoperable system to identify and trace certain prescription drugs as they are distributed in the United States. The DSCSA adds sections 581 through 585 as Subchapter H of the FD&C Act. These sections establish definitions (section 581), requirements for supply chain participants (section 582), standards for and licensing of wholesale drug distributors (section 583) and 3PL providers (section 584), and a Uniform National Policy (section 585).
The DSCSA establishes a Federal system for tracing prescription drug products through the pharmaceutical distribution supply chain and requires trading partners to provide, receive, and maintain certain product and distribution information. The DSCSA also requires FDA to establish Federal standards for licensing of wholesale drug distributors and 3PL providers. Section 585 of the FD&C Act sets forth a Uniform National Policy, preempting States and political subdivisions of states from establishing or continuing in effect certain standards and requirements. FDA is issuing this guidance to: (1) Help industry and States understand the immediate effects of the law and (2) clarify section 585's effect on State product tracing requirements and on standards, requirements, and regulations with respect to wholesale distributor and 3PL licensing.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on the effect of section 585 of the FD&C Act on drug product tracing and wholesale drug distributor and 3PL provider licensing and requirements. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the document at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Over-the-Counter Pediatric Liquid Drug Products Containing Acetaminophen.” The draft guidance is intended to help drug manufacturers, packagers, and labelers minimize the risk to consumers of acetaminophen-related liver damage associated with the use of nonprescription, also known as over-the-counter (OTC), acetaminophen-containing pediatric liquid drug products. This guidance provides recommendations for acetaminophen concentration, container labels and carton labeling, packaging of such products, and recommendations regarding any associated delivery devices. FDA's recommendations are designed to encourage safer use of these products by minimizing the potential for acetaminophen overdosing due to medication errors or accidental ingestion.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)), to ensure that the Agency considers your comments on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by December 8, 2014.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the draft guidance to
Alice Tu, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 4325, Silver Spring, MD 20993-0002, 301-796-7586.
FDA is announcing the availability of a draft guidance for industry entitled “Over-the-Counter Pediatric Liquid Drug Products Containing Acetaminophen.” Acetaminophen is
This draft guidance document is part of FDA's ongoing initiative to reduce the risk of acetaminophen-related liver injury associated with all OTC and prescription acetaminophen-containing products. As part of that initiative, in June 2009, three FDA committees, the Drug Safety and Risk Management Advisory Committee, the Nonprescription Drugs Advisory Committee, and the Anesthetic and Life Support Drugs Advisory Committee, met jointly to consider a range of risk reduction measures. Among other measures, the Advisory Committees recommended moving to a single, standardized acetaminophen concentration for OTC pediatric liquid drug products because the availability of multiple concentrations causes confusion and errors among both consumers and health care professionals. In May 2011, FDA convened a joint meeting of the Nonprescription Drugs Advisory Committee and the Pediatric Advisory Committee to discuss the use of acetaminophen in children. Shortly before the meeting, the Consumer Healthcare Products Association (CHPA) voluntarily proposed to phase out all of the existing concentrated drop formulations of the OTC, single-ingredient, oral, liquid acetaminophen drug products for pediatric use and market only the 160 mg/5 mL. At the Advisory Committee meeting, FDA took note of CHPA's voluntary transition to a single concentration of pediatric liquid acetaminophen. Among other recommendations, the Advisory Committees recommended the use of a flow restrictor or another feature designed to prevent excessive dosing, use of a safety dosing syringe to reduce accidental ingestion by children, and marking dosage delivery devices in milliliters only.
In response to CHPA's voluntary transition to a single concentration of OTC liquid acetaminophen products, FDA published a Drug Safety Communication on December 22, 2011, to inform the public of the 160 mg/5 mL concentration now marketed for children ages 2 to 3 years and to recommend that end users of the product read the Drug Facts label to identify the concentration of the liquid acetaminophen, dosage, and directions for use.
FDA is issuing this guidance to address ongoing concerns about the potential for acetaminophen overdose associated with these products and to promote their safe use.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance represents the Agency's current thinking on addressing safety achieved through drug product design and labeling to minimize medication errors. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either electronic comments regarding this document to
This draft guidance includes information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520). The collection of information referenced in this draft guidance that pertain to the format and content requirements for OTC drug product labeling (§ 201.66) have been approved under OMB control number 0910-0340. The labeling requirements in § 201.326 are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the PRA. Rather, the labeling statements are a “public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public” (5 CFR 1320.3(c)(2)). In accordance with the PRA, prior to publication of any final guidance document, FDA intends to solicit public comment and obtain OMB approval for any information collections recommended in this guidance that are new or that would represent material modifications to those previously approved collections of information found in FDA regulations or guidances.
Persons with access to the Internet may obtain the document at
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kristina Toliver at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
On November 20, 2014, the Science Board will be provided with progress reports from two subcommittees, the Commissioner's Fellowship Program Evaluation subcommittee and the Science Moving Forward subcommittee. The Board will be asked to support the formation of a new subcommittee to evaluate the Office of Regulatory Affairs' current investments in the Food Emergency Response Network cooperative agreement program and funding for state laboratories to achieve International Organization for Standardization accreditation. The Board will also be asked to support the formation of a new subcommittee to evaluate the Centers of Excellence in Regulatory Science and Innovation program. A recipient of one of the fiscal year 2013 Scientific Achievement Awards (selected by the Board) will provide an overview of the activities for which the award was given.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Written submissions pertaining to issues before the Board on November 20, 2014, may be made to the contact person on or before Thursday, November 13, 2014. Oral presentations from the public will be scheduled between approximately 12 p.m. and 12:30 p.m. on November 20, 2014. Those individuals interested in making formal oral presentations should notify the contact person and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses of proposed participants, and an indication of the approximate time requested to make their presentation on or before Wednesday, November 5, 2014. Time allotted for each presentation may be limited. If the number of registrants requesting to speak is greater than can be reasonably accommodated during the scheduled open public hearing session, FDA may conduct a lottery to determine the speakers for the scheduled open public hearing session. The contact person will notify interested persons regarding their request to speak at the November 20, 2014, meeting by Thursday, November 6, 2014.
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Martha Monser at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Request for comments.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment related to FDA's patient-focused drug development initiative. This initiative is being conducted to fulfill FDA performance commitments made as part of the fifth authorization of the Prescription Drug User Fee Act (PDUFA V). This effort provides for a more systematic approach under PDUFA V for obtaining the patient perspective on disease severity and currently available treatments for a set of disease areas. FDA is publishing a preliminary list of nominated disease areas for consideration in patient-focused drug development meetings during fiscal years (FYs) 2016-2017. The public is invited to comment on this preliminary list through a public docket.
Submit either electronic or written comments by December 5, 2014.
Submit electronic comments to
Pujita Vaidya, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 1144, Silver Spring, MD 20993, 301-796-7641, FAX: 301-796-0684,
On July 9, 2012, the President signed into law the Food and Drug Administration Safety and Innovation Act (FDASIA) of 2012. Title I of FDASIA reauthorizes the Prescription Drug User Fee Act (PDUFA) that provides FDA with the necessary user fee resources to maintain an efficient review process for human drug and biologic products. The reauthorization of PDUFA includes performance goals and procedures that represent FDA's commitments during FYs 2013-2017. These commitments are referred to in section 101 of FDASIA and are available on the FDA Web site at
Section X of these commitments relates to enhancing benefit-risk assessment in regulatory decisionmaking. A key part of regulatory decisionmaking is establishing the context in which the particular decision is made. In drug regulation, this context includes a thorough understanding of the severity of the treated condition and the adequacy of the existing treatment options. Patients who live with a disease have a direct stake in the outcome of the review process and are in a unique position to contribute to weighing benefit-risk considerations that can occur throughout the medical product development process. Though several programs exist to facilitate patient representation, there are currently few venues in which the patient perspective is discussed outside of a specific product's marketing application review. The human drug and biologic review process could benefit from a more systematic and expansive approach to obtaining input from patients who experience a particular disease or condition.
FDA is committed to obtaining the patient perspective on 20 different disease areas during the course of PDUFA V (FY 2013-2017). For each disease area, the Agency is conducting a public meeting to discuss the disease, its impact on patients' daily lives, the types of treatment benefit that matter most to patients, and patients' perspectives on the adequacy of available therapies. These meetings include participation of FDA review divisions, the relevant patient community, and other interested stakeholders.
On April 11, 2013, FDA published a
FDA is nominating the following disease areas as potential candidates for the focus of the remaining public meetings in FYs 2016-2017 and invites public comment on this preliminary list. In your comments, please identify the disease areas that you consider to be of greatest priority and explain the rationale for your recommendation.
FDA is also interested in public comment on disease areas that are not represented on this preliminary list. The Agency used several criteria to develop the preliminary list of potential disease areas. In the series of disease area meetings, the final disease set should reflect a range of diseases with respect to disease severity (less severe to more severe) and represent a broad range in terms of the size of the affected population (e.g., including more prevalent diseases as well as rare diseases). FDA requests that when proposing additional disease areas for consideration, please describe how you applied the identified criteria in making recommendations for additional disease areas to consider. The criteria include the following:
• Disease areas that are chronic, symptomatic, or affect functioning and activities of daily living;
• disease areas for which aspects of the disease are not formally captured in clinical trials;
• disease areas for which there are currently no therapies or very few therapies, or the available therapies do not directly affect how a patient feels, functions, or survives; and
• disease areas that have a severe impact on identifiable subpopulations (such as children or the elderly).
Interested persons may submit either electronic comments regarding this document to
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: Rebecca A. Ferrer, Division of Cancer Control and Population Sciences, 9609 Medical Center Dr., Room 3E114, Bethesda, MD 20892 or call non-toll-free number 240-276-6914 or Email your request, including your address to:
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated burden is 2,000 hours per year.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collections via application forms, the National Institute on Drug Abuse (NIDA), the National Institutes of Health (NIH) will publish periodic summaries of proposed collections to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total annualized burden hours are 426.
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the Merchant Marine Personnel Advisory Committee. This Committee advises the Secretary of the Department of Homeland Security on matters related to personnel in the U.S. merchant marine, including but not limited to training, qualifications, certification, documentation, and fitness standards.
Applicants should submit a cover letter and resume in time to reach the Alternate Designated Federal Officer on or before December 8, 2014.
Applicants should send their cover letter and resume to the following address: Commandant (CG-OES-1), ATTN Merchant Marine Personnel Advisory Committee, US Coast Guard Stop 7509, 2703 Martin Luther King Jr. Ave. SE., Washington, DC 20593-7509; or by faxing (202) 372-8382; or by emailing to
Davis J. Breyer, Alternate Designated Federal Officer of the Merchant Marine Personnel Advisory Committee; telephone 202-372-1445 or email at
The Merchant Marine Personnel Advisory Committee is an advisory committee established under the Secretary's authority in section 871 of The Homeland Security Act of 2002, (Title 6, United States Code, section 451). This Committee is established in accordance with and operates under the provisions of the
The Merchant Marine Personnel Advisory Committee is expected to meet approximately twice a year as called for by its charter, once at or near Coast Guard Headquarters, Washington, DC, and once at a location outside of Washington, DC. It may also meet for extraordinary purposes. Its subcommittees and working groups may also meet to consider specific tasks as required.
We will consider applications for the following six positions that expire or
If you are selected as a member from the general public, you will be appointed and serve as a Special Government Employee as defined in section 202(a) of Title 18, United States Code. As a candidate for appointment as a Special Government Employee, applicants are required to complete a Confidential Financial Disclosure Report (OGE Form 450). A completed OGE Form 450 is not releasable to the public except under an order issued by a Federal court or as otherwise provided under the
Registered lobbyists are not eligible to serve on federal advisory committees. Registered lobbyists are lobbyists required to comply with provisions contained in the Lobbying Disclosure Act of 1995 (Pub. L. 104-65 as amended).
Each Merchant Marine Personnel Advisory Committee member serves a term of office of up to three years. Members may be considered to serve consecutive terms. All members serve without compensation from the Federal Government; however, upon request, they may receive travel reimbursement and per diem.
The Department of Homeland Security does not discriminate in selection of Committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or any other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
If you are interested in applying to become a member of the Committee, send your cover letter and resume to Davis J. Breyer, Alternate Designated Federal Officer of the Merchant Marine Personnel Advisory Committee by mail, fax, or email according to the instructions in the
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) is accepting comments on the proposed
Comments must be received by December 8, 2014.
Comments must be identified by Docket ID FEMA-2014-0029 and may be submitted by one of the following methods:
Deana Platt, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472-3160, 202-646-3642.
You may submit your comments and material by the methods specified in the
This policy addresses insurance under FEMA's Public Assistance program. The proposed policy does not have the force or effect of law.
FEMA seeks comment on the proposed policy, which is available online at
42 U.S.C. 4012a, 4106, 5154, 5155, 5172, 5189, and 5189f; 44 CFR 206.250, 206.251, 206.252, 206.253.
Bureau of Land Management, Interior.
Notice of Realty Action.
The Bureau of Land Management (BLM) proposes to offer eight tracts of public land totaling 77.35 acres through modified competitive sale procedures to assure equitable distribution among purchasers of land and to recognize equitable considerations. The eight tracts of lands will be sold to the adjacent landowners for the appraised fair market and timber value of each parcel. The BLM is proposing to use the modified competitive sale procedures consistent with the requirements of Sections 203 and 209 of the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, and the applicable regulations.
Submit comments on or before November 24, 2014. The lands will be offered for sale at public auction beginning at 10:00 a.m. on December 8, 2014, at the address in the
Mail and submit written comments and sealed-bids to BLM, Marys Peak Field Manager, Richard Hatfield, Salem District Office, 1717 Fabry Road SE., Salem, OR 97306.
Phyllis E. Gregory, Realty Specialist, at the address above, or by telephone at 503-375-5623. Persons who use a Telecommunications Device for the Deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above listed individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above listed individual. You will receive a reply during normal business hours.
The following described public lands in Polk County, Oregon, have been examined and found suitable for sale under Sections 203 and 209 of FLPMA. The tracts of public land for the proposed sale are identified as follows:
The area described contains 40.21 acres. These two tracts of public land will be sold as one unit. The appraised fair market value of the land is $56,294, and the timber value is $66,591 totaling $122,885.00.
The area described contains 16.24 acres. The appraised fair market value of the land is $22,736 and the timber value is $18,130 totaling $40,866.00.
The area described contains 10.44 acres. The appraised fair market value of the land is 14,616 and the timber value is $5,654 totaling $20,270.00.
The area described contains 5.60 acres. The appraised fair market value of the land is $7,840 and the timber value is $5,654 totaling $13,494.00.
The area described contains 2.38 acres. The appraised fair market value of the land is $3,332 and the timber value is $2,087 totaling $5,419.00.
The area described contains 1.19 acres. The appraised fair market value of the land is $1,666 and the timber value is $14,784 totaling $16,450.00.
The area described contains 1.29 acres. The appraised fair market value of the land is $1,806 and the timber value is $810 totaling $2,616.00.
The overall property value of the land and the timber is $222,000.
These tracts of public lands meet the disposal criteria consistent with Section 203 of FLPMA and are in conformance with the BLM, Salem District Office, Resource Management Plan and Record of Decision approved May 1995.
These tracts of public lands were created by a survey error made in the mid-1800s, which mislaid the southeastern corner of the Confederated Tribes of the Grand Ronde Reservation inside the original and correct corner. The Grand Ronde Reservation Act of April 28, 1904 was passed to sell the unalloted lands within the Tribe's Reservation. These unalloted lands were sold along the incorrect boundary, leaving a small strip of land running west and north from the incorrect corner that was not purchased and eventually came under the BLM's administration. In the 1990s, this error was discovered and the lands were re-surveyed. This strip became known as the “Thompson Strip”. Because of the survey error, several private companies innocently believed they were the owners of record. This resulted in the unauthorized cutting and removal of forest products from these tracts of public lands. These public lands are difficult to access, manage, and are surrounded by private lands.
The proposed tracts of land will be offered for sale at public auction using modified competitive bidding procedures authorized under 43 CFR 2711.3-2. Public lands offered for sale utilizing modified competitive sale bidding procedures when the authorized officer determines it is necessary in order to assure equitable distribution of land among purchasers. Bidding for these tracts will be restricted to the following adjacent landowners: Nestucca Forests, LLC; Hampton Resources, Inc.; and Little John Resources, LLC.
The lands will be offered for sale at public auction beginning at 10:00 a.m. on December 8, 2014, at the address in the
Under modified competitive sale procedures, the sealed bids will be opened and a high bidder will be declared at the sale. Notification by mail will be provided to the high bidder and the other designated bidders. In the case
If any of the subject tracts are not sold on December 8, 2014, the tract will be re-offered on a continuing basis in accordance with the competitive sale procedures described in 43 CFR 2711.3-1. Sealed bids prepared and submitted in the manner described above will be accepted from any qualified bidder. Bids will be opened at 10:00 a.m., on the 7th day of each month thereafter, for 60 days, until a high bidder is declared.
Federal law requires that public land may be sold only to either (1) citizens of the United States, 18 years of age or over; (2) corporations subject to the laws of any State or of the United States; (3) a State, State instrumentality or political subdivision authorized to hold property; (4) an entity legally capable of conveying and holding lands or interests therein under the laws of the State within which the lands to be conveyed are located. Certifications and evidence to this effect will be required of the purchaser prior to issuance of a patent.
The following rights, reservations, and conditions will be included in the patent conveying the land:
1. A right-of-way is reserved for ditches and canals constructed by authority of the United States under the Act of August 30, 1890 (26 Stat. 291; 43 U.S.C. 945).
2. The tracts are subject to all valid existing rights and reservations of record.
3. An appropriate indemnification clause protecting the United States from claims arising out of the lessees/patentee's use, occupancy, or occupations on the leased/patented lands.
No representation, warranty, or covenant of any kind, express or implied, is given or made by the United States as to access to or from any parcel of land, the title, whether or to what extent the land may be developed, its physical condition, present or potential uses, or any other circumstance or condition.
All persons, other than the successful bidders, claiming to own unauthorized improvements on the land are allowed 60 days from the date of sale to remove the improvements.
A successful bid for each tract will constitute an application for conveyance of the mineral estate in accordance with Section 209 of the FLPMA (43 U.S.C. 1719). Those mineral interests will be conveyed simultaneously with the sale of the land, and have been determined by BLM to have no known mineral value. At the closing, the purchaser will pay to the BLM a non-refundable fee of $50.00 in accordance with 43 CFR 2720.1-2(c).
On October 8, 2014, the above-described lands will be segregated from appropriation under the public land laws, including the mining laws, except from the sale provisions of FLPMA. Until completion of the sale, the BLM is no longer accepting land use applications affecting the identified public lands, except applications for the amendment of previously filed right-of-way applications or existing authorizations to increase the term of the grants in accordance with 43 CFR 2807.15 and 2886.15. The segregative effect will terminate upon issuance of a patent, publication in the
Detailed information about this modified competitive land sale, including the appraisal, the Environmental Assessment, and the Decision, is available at the Salem District Office during business hours.
Any comments regarding the proposed sale will be reviewed by the BLM Oregon State Director or other authorized official of the Department of the Interior, who may sustain, vacate, or modify this realty action in whole or in part.
In the absence of timely filed objections, this realty action will become the final determination of the Department of the Interior.
43 U.S.C. 1713 and 1719; 43 CFR 2711.1-2(c).
National Park Service, Interior.
Notice of Request for Nominations.
The National Park Service, U.S. Department of the Interior, is seeking nominations for members at large to the Acadia National Park Advisory Commission (Commission). The purpose of the Commission is to advise the Secretary of the Interior (Secretary) and the National Park Service (NPS) on matters relating to management and development of Acadia National Park.
Written nominations must be postmarked by November 7, 2014.
Send nominations to David Manski, Acting Deputy Superintendent, Acadia National Park, P.O. Box 177, Bar Harbor, Maine 04609, telephone (207) 288-8701, or email
David Manski, Acting Deputy Superintendent, Acadia National Park, P.O. Box 177, Bar Harbor, Maine 04609, telephone (207) 288-8701, or email
The Acadia National Park Advisory Commission was established in accordance with the provisions of the Federal Advisory Committee Act (FACA) 5 U.S.C. App. 1-16; Sec. 103, Public Law 99-420, 100 Stat. 959; and Sec. 314, Public Law 110-229, 122 Stat. 775.
The Commission advises the Secretary and the NPS on matters relating to the management and development of Acadia National Park, including but not limited to the acquisition of lands and interests in lands (including conservation easements on islands) and the termination of rights of use and occupancy.
The Commission is composed of 16 members appointed by the Secretary, as follows: (a) Three members at large; (b) three members appointed from among individuals recommended by the Governor of Maine; (c) four members appointed from among individuals recommended by each of the four towns on the island of Mount Desert; (d) three members appointed from among individuals recommended by each of the three Hancock County mainland communities of Gouldsboro, Winter Harbor, and Trenton, and; (e) three members appointed from among individuals recommended by each of the three island towns of Cranberry Isles, Swans Island, and Frenchboro.
Members of the Commission will receive no pay, allowances, or benefits by reason of their service on the Commission. However, while away from their homes or regular places of business in the performance of services for the Commission as approved by the Designated Federal Officer, members will be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in Government service are allowed such expenses under 5 U.S.C. 5703.
Individuals who are Federally registered lobbyists are ineligible to serve on all FACA and non-FACA boards, committees, or councils in an individual capacity. The term “individual capacity” refers to individuals who are appointed to exercise their own individual best judgment on behalf of the government, such as when they are designated Special Government Employees, rather than being appointed to represent a particular interest.
We are seeking nominations for commission members in the following category: Members at large. Nominations should include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding meeting the membership requirements of the Commission and permit the Department to contact a potential member.
Members are appointed by the Secretary for a term not to exceed three years. The terms of the three members at large of the Commission expire on September 28, 2014. The Commission last met on June 2, 2014, and usually meets three times per year, generally in June, September, and February. Meetings may take place at such times as designated by the Designated Federal Officer. Members are expected to make every effort to attend all meetings. Members may not appoint deputies or alternates.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.34(a) on or before November 7, 2014. Such persons may also file a written request for a hearing on the application pursuant to 21 CFR 1301.43 on or before November 7, 2014.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/ODW, 8701 Morrissette Drive, Springfield, Virginia 22152. Request for hearings should be sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 8701 Morrissette Drive, Springfield, Virginia 22152.
The Attorney General has delegated his authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of importers, of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, subpart R, App.
In accordance with 21 CFR 1301.34(a), this is notice that on December 13, 2013, Fisher Clinical Services, Inc., 700A-C Nestle Way, Breinigsville, Pennsylvania 18031-1522 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import the listed substances for analytical research, testing, and clinical trials. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial distribution in the United States.
The company plans to import an intermediate form of tapentadol (9780) to bulk manufacture tapentadol for distribution to its customers.
Notice of registration.
Alkermes Gainesville LLC applied to be registered as an importer of a basic class of controlled substance. The DEA grants Alkermes Gainesville LLC registration as an importer of this controlled substance.
By notice dated June 10, 2014, and published in the
The Drug Enforcement Administration (DEA) has considered
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of Noroxymorphone (9668), a basic class of controlled substance listed in schedule II.
The company plans to import the above listed controlled substance for analytical research and testing.
The import of the above listed basic class of controlled substance would be granted only for analytical testing and clinical testing. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial distribution in the United States.
Notice of registration.
Austin Pharma, LLC applied to be registered as a manufacturer of certain basic classes of controlled substances. The DEA grants Austin Pharma, LLC registration as a manufacturer of those controlled substances.
By notice dated May 28, 2014, and published in the
The Drug Enforcement Administration (DEA) has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Austin Pharma, LLC to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances:
The company plans to manufacture bulk synthetic active pharmaceutical ingredients (APIs) for distribution and new product development to its customers. The company plans to bulk manufacture a synthetic tetrahydrocannabinol.
In reference to drug code 7360, the company plans to manufacture a synthetic cannabinol in bulk for sale to its customers. The controlled substance will be further synthesized to bulk manufacture a synthetic tetrahydrocannabinol (7370). No other activity for this drug code is authorized for this registration.
Notice of registration.
Siemens Healthcare Diagnostics, Inc., applied to be registered as a manufacturer of certain basic classes of controlled substances. The DEA grants Siemens Healthcare Diagnostics, Inc. registration as a manufacturer of those controlled substances.
By notice dated May 2, 2014, and published in the
The Drug Enforcement Administration (DEA) has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Siemens Healthcare Diagnostics, Inc., to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed:
The company plans to produce the listed controlled substances in bulk to be used in the manufacture of reagents and drug calibrator controls which are DEA exempt products.
In reference to drug code 7370 the company plans to bulk manufacture a synthetic tetrahydrocannabinol. No other activity for this drug code is authorized for this registration.
Notice.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) titled, “Quarterly Census of Employment and Wages,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 7, 2014.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
This ICR seeks to extend PRA authority for the Quarterly Census of Employment and Wages (QCEW) information collection. The BLS uses QCEW data provided by State Workforce Agencies as a sampling frame for establishment surveys; for publishing accurate current estimates of employment for the U.S., States, counties, and metropolitan areas; and for publishing quarterly census totals of local establishment counts, employment, and wages. The Bureau of Economic Analysis uses the data to produce accurate personal income data in a timely matter for the U.S., States, and local areas. Finally, the data is critical to the Employment Training Administration in administrating unemployment insurance programs. This information collection is authorized by the Act establishing the BLS (codified at 29 U.S.C. 1, 2) and Wagner-Peyser Act, as Amended section 15 (
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on October 31, 2014. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of Competition and Request for Proposals (RFP) for Online OSHA Outreach Training Program Providers.
This notice announces, in abstract format, a request for proposals to deliver 10-hour and 30-hour Outreach Training Program courses, on behalf of OSHA, in the construction industry, general industry, maritime industry, and targeted training for young workers, in an online format.
All proposals received by December 12, 2014, 4:00 p.m. CT, the application deadline, will be considered by OSHA. Proposals must be in writing, and meet the specified requirements. Questions regarding this procurement may be made to the OSHA Directorate of Training and Education, U.S. Department of Labor, 2020 S. Arlington Heights Road, Arlington Heights, IL 60005-4102, Attention: Dr. Henry Payne, Administrative Officer. Only written inquiries will be answered.
Please submit ONE (1) signed original and THREE (3) copies of the proposal, plus ONE (1) CD-ROM or USB Flash Drive of the complete proposal identical to the hard copies, on or before December 12, 2014, 4:00 p.m. CT to: Henry Payne, Ph.D., Administrative Officer, Directorate of Training and Education, U.S. Department of Labor, OSHA, 2020 S Arlington Heights Rd, Arlington Heights, IL 60005-4102.
Questions regarding this RFP may be submitted in writing by November 26, 2014, 11:59 p.m. CT to the Administrative Officer, Dr. Henry Payne. Questions received after November 26, 2014, 11:59 p.m. CT will not receive a response. Responses to timely written questions will be posted on the OSHA Web site,
The complete version of this announcement has been published on the OSHA Web site (
Although contracts resulting from the Solicitation will not be funded with appropriated funds, and the Federal Acquisition Regulation will not apply, the solicitation document utilizes a FAR-type format for convenience, and incorporates provisions and clauses adapted from those found in the FAR. It is anticipated that one or more awards will be made from this solicitation. OSHA may make up to two awards in each of the four identified categories. This requirement is for a base year with options for four (4) successive one-year periods.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is Section 21 of the Occupational Safety and Health Act of 1970, (29 U.S.C. 670), Public Law 111-117, and Public Law 112-10, and Secretary of Labor's Order No. 1-2012 (77 FR 3912).
National Archives and Records Administration (NARA).
Correction; FOIA Advisory Committee Meeting Notice.
The National Archives and Records Administration (NARA) published a notice in the
The meeting will be held on October 21, 2014, from 10:00 a.m. to 1:00 p.m. EDT.
National Archives and Records Administration (NARA), 700 Pennsylvania Avenue NW., Archivist's Reception Room (Room 105), Washington, DC 20408.
This meeting will be open to the public. However, due to space limitations and access procedures, NARA requests that individuals planning to attend register for the event via Eventbrite at
This notice is being issued 13 calendar days rather than 15 calendar days in advance of the October 21, 2014, FOIA Advisory Committee meeting due to technical difficulties in publishing the notice. Public inspection of the meeting notice occurred 15 calendar days in advance of the proposed meeting, and notice of the meeting was also posted publicly on the OGIS Web site at
Christa Lemelin, Designated Federal Officer for this committee, at National Archives and Records Administration, Office of Government Information Services, 8601 Adelphi Road—OGIS, College Park, MD 20740-6001, by telephone at 202-741-5773; or by email at
National Archives and Records Administration.
Notice of FOIA Advisory Committee Meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. App) and the second United States Open Government National Action Plan (NAP) released on December 5, 2013, NARA announces the following committee meeting to discuss improvements to the administration of the Freedom of Information Act (FOIA).
The meeting will be held on October 21, 2014, from 10:00 a.m. to 1:00 p.m. EDT.
National Archives and Records Administration (NARA), 700 Pennsylvania Avenue NW., Archivist's Reception Room (Room 105), Washington, DC 20408.
This meeting will be open to the public. However, due to space limitations and access procedures, NARA requests that individuals planning to attend register for the event via Eventbrite at
Christa Lemelin, Designated Federal Officer for this committee, at National Archives and Records Administration, Office of Government Information Services, 8601 Adelphi Road—OGIS, College Park, MD 20740-6001, by telephone at 202-741-5773; or by email at
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before November 7, 2014. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
Margaret Hawkins, Director, Records Management Services (ACNR), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-1799. Email:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1225.12(e).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Agriculture, Office of the Secretary (DAA-0016-2014-0002, 1 item, 1 temporary item). Administrative wage garnishment case files.
2. Department of Army, Agency-wide (DAA-AU-2014-0025, 1 item, 1 temporary item). Master files of an electronic information system that contains oil sample information and other records related to oil analysis.
3. Department of Commerce, Census Bureau (DAA-0029-2014-0005, 3 items, 3 temporary items). Records of the Center for Administrative Records Research and Applications documenting the acquisition and processing of data files from outside providers.
4. Department of Defense, National Geospatial-Intelligence Agency (DAA-0537-2014-0004, 1 item, 1 temporary item). Files related to the health and training of agency police dogs.
5. Department of Health and Human Services, Agency for Healthcare Research and Quality (DAA-0510-2014-0001, 1 item, 1 temporary item). Guest researcher agreements.
6. Department of Health and Human Services, Indian Health Service (DAA-0513-2014-0003, 5 items, 5 temporary items). Patient medical records and related indices of the health management program.
7. Department of Homeland Security, Office of the Chief Security Officer (DAA-0563-2014-0003, 3 items, 3 temporary items). Administrative records for account access and certification.
8. Department of the Interior, Bureau of Safety and Environmental Enforcement (N1-473-12-5, 43 items, 35 temporary items). Records documenting regulatory oversight and stewardship activities for the Outer Continental Shelf. Records include plans and permits for exploration, development, and production of oil and gas; oil spill preparedness and planning; environmental monitoring; and industry safety and training initiatives. Records proposed for permanent retention include oil spill research, response and incident reviews, environmental studies and enforcement actions, and safety and environmental management and compliance program records.
9. National Archives and Records Administration, Agency-wide (DAA-0064-2014-0003, 1 item, 1 temporary item). Routine surveillance recordings of a federal facility.
10. National Archives and Records Administration, Research Services (N2-84-14-3, 1 item, 1 temporary item). Records of Foreign Service Posts of the Department of State including visa applications, registration books, and other related records. These records were accessioned to the National Archives but lack sufficient historical value to warrant continued preservation.
11. National Archives and Records Administration, Research Services (N2-166-14-2, 2 items, 2 temporary items). Records of the Foreign Agricultural Service including drafts of outgoing cables and copies of Foreign Service regulations issued by the Department of State. These records were accessioned to the National Archives but lack sufficient historical value to warrant continued preservation.
12. National Archives and Records Administration, Research Services (N2-208-14-1, 2 items, 2 temporary items). Records of the Office of War Information which duplicate records in other series. These records were accessioned to the National Archives but lack sufficient historical value to warrant continued preservation.
13. Social Security Administration, Office of Legislation and Congressional Affairs (DAA-0047-2012-0005, 15 items, 10 temporary items). Records include correspondence files, control logs, legislation files, preparation materials, and analysis files. Proposed for permanent retention are formally approved legislative packages, legislative bulletins, historical files, testimony, and questions for the record.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
October 29, 2014, 9:00 a.m.-5:00 p.m.
October 30, 2014, 8:30 a.m.-2:00 p.m.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
On Tuesday, October 21, the National Transportation Safety Board (NTSB) will convene a public forum titled
The 1-day forum will focus on the problem of drowsy driving, its prevalence, and how it affects driving safety in noncommercial vehicles. Invited panelists will examine the risk factors associated with drowsy driving and consider various countermeasures to address drowsy driving and drowsy driving crashes.
Below is the preliminary agenda:
The full agenda and a list of participants can be found at the following Web address:
The forum will be held in the NTSB Board Room and Conference Center, located at 429 L'Enfant Plaza E. SW., Washington, DC. The public can view the hearing in person or by live webcast at
Individuals requiring reasonable accommodation and/or wheelchair access directions should contact Ms. Rochelle Hall at (202) 314-6305 or by email at
NTSB Media Contact: Keith Holloway—
NTSB Forum Manager: Jana Price—
The ACRS Subcommittee on Reliability & PRA will hold a meeting on October 15, 2014, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of portions that may be closed to protect information that is proprietary pursuant to 5 U.S.C. 552b(c)(4). The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss staff's progress of level 3 Probabilistic Risk Assessment (PRA) Project. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), John Lai (Telephone 301-415-5197 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on Metallurgy & Reactor Fuels will hold a meeting on October 16, 2014, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review Draft Regulatory Guide DG-1299, “Regulatory
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christopher Brown (Telephone 301-415-7111 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
Week of October 6, 2014.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Rochelle Bavol at (301) 415-1651 or via email at
By a vote of 3-0 on October 6, 2014, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission's rules that the above referenced Affirmation Session be held with less than one week notice to the public. The meeting is scheduled on October 7, 2014.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Kimberly Meyer, NRC Disability Program Manager, at 301-287-0727, by videophone at 240-428-3217, or by email at
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an email to
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning Bilateral Agreement with Royal Mail Group, Ltd. negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On October 1, 2014, the Postal Service filed notice, pursuant to 39 CFR 3015.5 and Order No. 546, informing the Commission that it has entered into a bilateral agreement with Royal Mail
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket No. CP2015-1 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 9, 2014. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2015-1 to consider matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public.
3. Comments by interested persons in this proceeding are due no later than October 9, 2014.
4. The Secretary shall arrange for publication of this order in the
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (the “Commission”) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below.
Section 19(a) (15 U.S.C. 80a-19(a)) of the Investment Company Act of 1940 (the “Act”)
Rule 19a-1 (17 CFR 270.19a-1) under the Act, entitled “Written Statement to Accompany Dividend Payments by Management Companies,” sets forth specific requirements for the information that must be included in statements made pursuant to section 19(a) by or on behalf of management companies.
The purpose of rule 19a-1 is to afford fund shareholders adequate disclosure of the sources from which distribution payments are made. The rule is intended to prevent shareholders from confusing income dividends with distributions made from capital sources. Absent rule 19a-1, shareholders might receive a false impression of fund gains.
Based on a review of filings made with the Commission, the staff estimates that approximately 11,066 series of registered investment companies that are management companies may be subject to rule 19a-1 each year,
The staff estimates that approximately one-third of the total annual burden (7,377 hours) would be incurred by a paralegal with an average hourly wage rate of approximately $199 per hour,
To comply with state law, many investment companies already must distinguish the different sources from which a shareholder distribution is paid and disclose that information to shareholders. Thus, many investment companies would be required to distinguish the sources of shareholder
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Compliance with the collection of information required by rule 19a-1 is mandatory for management companies that make statements to shareholders pursuant to section 19(a) of the Act. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 6e-2 (17 CFR 270.6e-2) under the Investment Company Act of 1940 (“Act”) (15 U.S.C. 80a) is an exemptive rule that provides separate accounts formed by life insurance companies to fund certain variable life insurance products, exemptions from certain provisions of the Act, subject to conditions set forth in the rule. The rule sets forth several information collection requirements.
Rule 6e-2 provides a separate account with an exemption from the registration provisions of section 8(a) of the Act if the account files with the Commission Form N-6EI-1 (17 CFR 274.301), a notification of claim of exemption.
The rule also exempts a separate account from a number of other sections of the Act, provided that the separate account makes certain disclosure in its registration statements (in the case of those separate account that elect to register), reports to contractholders, proxy solicitations, and submissions to state regulatory authorities, as prescribed by the rule.
Paragraph (b)(9) of rule 6e-2 provides an exemption from the requirements of section 17(f) of the Act and imposes a reporting burden and certain other conditions. Section 17(f) requires that every registered management company meet various custody requirements for its securities and similar investments. The exemption provided in paragraph (b)(9) applies only to management accounts that offer life insurance contracts.
Since 2008, there have been no filings under paragraph (b)(9) of rule 6e-2 by management accounts. Therefore, since 2008, there has been no cost or burden to the industry regarding the information collection requirements of paragraph (b)(9) of rule 6e-2. In addition, there have been no filings of Form N-6EI-1 by separate accounts since 2008. Therefore, there has been no cost or burden to the industry since that time. The Commission requests authorization to maintain an inventory of one burden hour for administrative purposes.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
On August 11, 2014, Chicago Mercantile Exchange Inc. (“CME”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-CME-2014-31 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
CME is proposing to amend its clearing rules to enable CME to offer clearing of certain iTraxx Europe index untranched credit default swap (“CDS”) contracts on indices administered by Markit (“iTraxx Contracts”). In addition, CME has submitted to the Commission a proposed rule change to modify its risk model for broad-based index CDS products, including adding a self-referencing risk component, to enable CME to offer, among other things, clearing of additional CDS instruments that entail self-referencing risk, such as the iTraxx Contracts.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to delay the implementation date of amendments to the trade reporting rules relating to the OTC Reporting Facility (“ORF”), the Alternative Display Facility (“ADF”) and the Trade Reporting Facilities (“TRFs”) approved pursuant to SR-FINRA-2013-050. The proposed rule change would not make any changes to FINRA rules.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On November 12, 2013, FINRA filed proposed rule change SR-FINRA-2013-050 to amend FINRA rules governing the reporting of (i) over-the-counter (“OTC”) transactions in equity securities to the FINRA Facilities;
In SR-FINRA-2013-050, FINRA proposed that the effective date of the proposed rule changes to the trade reporting rules would be no earlier than April 15, 2014, and no later than September 30, 2014, and the effective date of the proposed rule change to the OATS rules would be no later than 45 days after Commission approval. In Amendment No. 1, FINRA clarified that it would implement the amendments to the trade reporting rules in phases, with the amendments becoming operative for the ORF first (upon migration of the ORF to FINRA's multi-product platform (“MPP”)) and for the ADF and TRFs at a subsequent date. As previously announced by FINRA, the amendments to the OATS rules became effective on April 7, 2014.
By letter dated August 8, 2014, the Financial Information Forum (“FIF”) formally requested a delay of migration of the ORF to the MPP and implementation of the amendments to the trade reporting rules approved pursuant to SR-FINRA-2013-050 until February 23, 2015, stating that firms need additional time to complete and test the systems changes. Firms have indicated that they do not believe they could meet a September 2014 implementation date, in light of the development efforts that the amendments will entail, as well as other development efforts currently underway.
To accommodate this request and to provide additional time for firms to complete the necessary systems changes, FINRA is filing this proposed rule change to revise the time frame for implementation of the amendments to the trade reporting rules approved pursuant to SR-FINRA-2013-050.
In response to the FIF's request, FINRA believes a delay in the migration of the ORF to the MPP from September 15, 2014 to November 17, 2014 is appropriate.
In addition, FINRA is proposing that the amendments to the ADF and TRF rules approved pursuant to SR-FINRA-2013-050 requiring firms to report time in milliseconds if their systems capture milliseconds
Finally, FINRA is proposing that the remaining amendments to the ADF and TRF trade reporting rules, as well as the technical and conforming amendments to the rules, approved pursuant to SR-FINRA-2013-050 be implemented no earlier than March 1, 2015 and no later than April 30, 2015. Specifically, the remaining amendments to the ADF and TRF rules (i) require firms to report an additional time field for Stop Stock transactions
“Stop stock transaction” means a transaction resulting from an order in which a firm and another party agree that the order will be executed at a stop stock price or better, which price is based upon the prices at which the security is trading at the time the firm receives the order.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the Commission waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing. The operative date will be the date of filing of the proposed rule change.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA believes that providing adequate time for firms to make the systems changes necessary to comply with SR-FINRA-2013-050 will benefit all interested parties.
Copies of the FIF Letter and FINRA Response, which addresses the issues raised in the FIF Letter, are attached to this filing. In response to the FIF's request, as discussed above, FINRA has delayed migration of the ORF and is proposing to delay implementation of the trade reporting amendments approved under SR-FINRA-2013-050. FINRA believes that the revised implementation timeline set forth above will provide members additional time to make the necessary system changes while balancing the need to implement the amendments without undue delay.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing.
The Commission believes that the waiver of the 30-day operative delay is consistent with the protection of investors and the public interest as it will allow FINRA to extend the implementation dates of certain changes approved pursuant to SR-FINRA-2013-050 in a timely manner. Therefore, the Commission designates the proposal operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On 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
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,
After careful review of the proposed rule change as well as the comment letters and the Phlx response letter received on the Proposal, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, with Section 6(b) of the Act.
As noted above, the Commission received two comment letters from one commenter in response to the proposed rule change.
Phlx Rule 1014, Commentary .05(c)(ii), as proposed to be revised, describes priority for crossing, facilitation, and solicited orders in open outcry transactions. The proposed rules governing open outcry during crossing, facilitation, and solicited transactions on the Exchange floor are similar to the rules governing priority in crossing transactions at other exchanges.
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”)
CME is filing proposed rules changes that are limited to its business as a derivatives clearing organization. CME proposes to amend the current CME ClearPort hours for certain enumerated commodity index cleared swap contracts. The proposed changes are as follows:
The current hours for submission to clearing via CME ClearPort for the above-referenced contracts are 5:00 p.m. CT to 4:15 p.m. CT next day, Sunday-Friday. The new hours for the above-referenced contracts will be 6:00 p.m. CT to 5:45 p.m. CT next day, Sunday-Friday.
In its filing with the Commission, CME 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. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
CME is registered as a DCO with the Commodity Futures Trading Commission and offers clearing services for many different futures and swaps products. The proposed rule change that is the subject of this filing is limited to CME's business as a DCO offering clearing services for CFTC-regulated swaps products. The proposed rule change would amend the CME ClearPort hours for commodity index cleared swap contracts. CME ClearPort provides functionality for the acceptance of contracts for clearing. The affected contracts are listed below:
The current hours for submission to clearing via CME ClearPort for these contracts are 5:00 p.m. CT to 4:15 p.m. CT next day, Sunday-Friday. Under the proposed rule change, the new hours for the affected contracts would be 6:00 p.m. CT to 5:45 p.m. CT next day, Sunday-Friday. The proposed change in hours will shorten the period in which daily trade submission is halted from 45 minutes to 15 minutes. The proposed new hours will be made known to the trading community in advance of the effective date via a Special Executive Report and will be posted in the trading specifications for the contracts on the CME Web site.
The changes that are described in this filing are limited to CME's business as a DCO clearing products under the exclusive jurisdiction of the CFTC and do not materially impact CME's security-based swap clearing business in
CME believes the proposed rule change is consistent with the requirements of the Exchange Act including Section 17A of the Exchange Act.
Furthermore, the proposed changes are limited in their effect to products offered under CME's authority to act as a DCO. The products that are the subject of this filing are under the exclusive jurisdiction of the CFTC. As such, the proposed CME changes are limited to CME's activities as a DCO clearing swaps that are not security-based swaps, futures that are not security futures and forwards that are not security forwards. CME notes that the policies of the CFTC with respect to administering the Commodity Exchange Act are comparable to a number of the policies underlying the Exchange Act, such as promoting market transparency for over-the-counter derivatives markets, promoting the prompt and accurate clearance of transactions and protecting investors and the public interest.
Because the proposed changes are limited in their effect to products offered under CME's authority to act as a DCO, the proposed changes are properly classified as effecting a change in an existing service of CME that:
(a) Primarily affects the clearing operations of CME with respect to products that are not securities, including futures that are not security futures, swaps that are not security-based swaps or mixed swaps; and forwards that are not security forwards; and
(b) does not significantly affect any securities clearing operations of CME or any rights or obligations of CME with respect to securities clearing or persons using such securities-clearing service.
As such, the changes are therefore consistent with the requirements of Section 17A of the Exchange Act
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition. The amendments would adopt new CME ClearPort hours for twenty commodity index cleared swap contracts. Further, the changes are limited to CME's derivatives clearing business and, as such, do not affect the security-based swap clearing activities of CME in any way and therefore would not impose any burden on competition that is inappropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed changes have not been solicited or received. CME will notify the Commission of any written comments received by CME.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
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 comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CME-2014-39 and should be submitted on or before October 29, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (“Fee Schedule”) to modify the fees that it charges for routing orders to the New York Stock Exchange LLC (“NYSE”). The Exchange proposes to implement the changes on October 1, 2014. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule to modify the fees that it charges for routing orders to the NYSE. The Exchange proposes to implement the changes on October 1, 2014.
The NYSE introduced modifications to its transaction fee structures, including changes to the rates for taking liquidity, which became effective on September 1, 2014.
Currently, the NYSE charges a transaction fee for certain transactions in securities with a per share price of $1.00 or more based on the characteristics of the transaction. Among other changes, the NYSE Fee Filing proposed to increase the charge for transactions that do not have a specified per share charge based on their characteristics (“all other” transactions). The NYSE Fee Filing increased the per share charge for all other non-floor broker transactions (i.e., when taking liquidity from the Exchange) from $0.0026 to $0.0027 per transaction.
Currently, for the Exchange's Tier 1, Tier 2, Tier 3, Step Up Tier 1, and Step Up Tier 2 customers, the fee for routing orders in Tape A securities to the NYSE outside the book is equal to the previous NYSE fee of $0.0026 per share for all other non-floor broker transactions in securities with a per share price of $1.00 or more, and the fee for routing such orders to the NYSE for non-tier (i.e., Basic Rate) customers is $0.0028 per share.
In addition, the Exchange currently charges $0.0024 per share for Primary Sweep Orders
For Primary Only Plus (“PO+”) orders,
The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any problems that ETP Holders would have in complying with the proposed changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed changes to routing fees are reasonable because the Exchange's fees for routing orders to the NYSE are closely related to the NYSE's fees for its members for taking liquidity, and the fee increases are consistent with the NYSE's recent increase for its fees for taking liquidity. The proposed changes will result in maintaining the existing relationship between the two sets of fees. In addition, the Exchange believes that the proposed rule change is reasonable, equitable, and not unfairly discriminatory because it would result in an increase in the per share fee for orders, Primary Sweep Orders, and PO+ Orders routed to the NYSE, thereby aligning the rate that the Exchange charges to ETP Holders with the rate that the Exchange is charged by the NYSE. Accordingly, the Exchange is proposing this increase so that the rate it charges to ETP Holders reflects the rate that the Exchange is charged by the NYSE. In addition, the proposed changes are equitable and not unfairly discriminatory because the fee increases apply uniformly across pricing tiers and all similarly situated ETP Holders would be subject to the same fee structure.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition. For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change promotes a competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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-NYSEArca-2014-109. 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
The Exchange [sic] to correct an inconsistency in the Exchange's Rulebook related to Rule 60 entitled “Sanctions for Breach of Regulations.”
A notice of the proposed rule change for publication in the
(a)(i) An Options Exchange Official may impose on members, member organizations, participants, participant organizations and their associated persons, fines for breaches of regulations that relate to administration of order, decorum, health, safety and welfare on the Exchange or an Options Exchange Official may refer the matter to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12.
(ii) Exchange Staff may impose on members, member organizations, participants, participant organizations and their associated persons, fines for breaches of regulations that relate to administration of order, decorum, health, safety and welfare on the Exchange or Exchange Staff may refer the matter to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12.
(b)(i) An Options Exchange Official and an officer of the Exchange may exclude a member, participant, and any associated person of member organizations and participant organizations (“member”) from the trading floor for breaches of regulations that relate to administration of order, decorum, health, safety and welfare on the Exchange that occurred on the trading floor or on the premises immediately adjacent to the trading floor. Specifically, members shall be excluded if they pose an immediate threat to the safety of persons or property, are seriously disrupting Exchange operations, or are in possession of a firearm. Members so excluded [are excluded for the remainder of the trading day.]
(ii) For purposes of this Rule, an “officer of the Exchange” shall refer to an officer who is a vice president or higher.
(iii) For purposes of this Rule and the Regulations promulgated thereunder, the “premises immediately adjacent to the trading floor” shall include the following: (1) All premises other than the trading floor that are under Exchange control, and (2) premises in the building where the Exchange maintains its principal office and place of business, namely 1900 Market Street, Philadelphia, Pennsylvania.
(iv) Exclusion from the floor may not be the exclusive sanction for breaches of this Rule and the regulations thereunder. In addition to exclusion, a member may also be subject to a fine or the matter may be referred to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12.
• • •
The procedure to be followed in cases where a pre-set fine of up to $[5]
.01 Notice of Fine. Notice of fine for breach of such regulations shall be given by the issuance of a written citation. Exchange Staff shall serve the written citations that are issued by the Options Exchange Official. The cited party may accept or contest the written citation.
.02 Time and Place of Hearing. If the written citation is contested, the Exchange shall fix a mutually convenient time and place of hearing, notice of which must be given in advance and may be given orally.
.03 Record. An appropriate record shall be kept. The costs of the making of such a transcript, including, but not limited to, the costs for the court reporter, reproduction of the transcript and producing copies thereof, shall be equally borne by the Exchange and by the cited party.
.04 Procedure. The hearing shall be conducted by a Hearing Director appointed by the Chair of the Business Conduct Committee, and will be conducted in whatever manner will permit full presentation of the evidence.
.05 Finding. The finding of the Hearing Director shall be rendered at the close of the hearing.
.
.0[6]
.0[7]
• • •
The procedure to be followed when a member is to be excluded from the trading floor is as follows:
[.01 Ruling. After an Options Exchange Official and an officer of the Exchange determine that a member shall be excluded, a member of the Exchange's security staff shall escort the member off the trading floor. The member shall remain off the trading floor for the remainder of the trading day. Exchange staff shall thereafter memorialize the exclusion in the form of a written citation.]
.0[2]
.0[3]
In most cases, the PHLX will enforce compliance with Order and Decorum Code pursuant to Rule 60. While ordinarily a finding of a violation will result in the appropriate pre-set fine and/or sanction, an Options Exchange Official or Exchange Staff may refer the matter to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12. In the case of repeat violations of a regulation by the same individual, the amount of the fine is determined by the number of such violations which have occurred within the
(a)(i) An Options Exchange Official may impose on members, member organizations and their associated persons, fines for breaches of regulations that relate to administration of order, decorum, health, safety and welfare on the Exchange or an Options Exchange Official may refer the matter to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12.
(ii) Exchange Staff may impose on members, member organizations and their associated persons, fines for breaches of regulations that relate to administration of order, decorum, health, safety and welfare on the Exchange, or Exchange Staff may refer the matter to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12.
(b)(i) An Options Exchange Official and an officer of the Exchange may exclude a member, and any associated person of member organizations (“member”) from the trading floor for breaches of regulations that relate to administration of order, decorum, health, safety and welfare on the Exchange that occurred on the trading floor or on the premises immediately adjacent to the trading floor. Specifically, members shall be excluded if they pose an immediate threat to the safety of persons or property, are seriously disrupting Exchange operations, or are in possession of a firearm. Members so excluded may be excluded for a period of up to five (5) business days.
(c) If a member shall be excluded for a period exceeding forty-eight hours, an expedited hearing (“Expedited Hearing”) will be held before the Chair of the Business Conduct Committee or a member of the Committee designated by the Chair (“Expedited Hearing Officer”) within forty-eight (48) business hours after the members' exclusion from the trading floor. Written notice will be provided to the member of the date, time and place of the hearing. The member may be represented by counsel. The Expedited Hearing Officer or his or her designee shall conduct an Expedited Hearing. The Expedited Hearing Officer shall allow both the member or his or her representative and Exchange staff to present arguments. The Expedited Hearing Officer shall make a determination of whether to continue the member's exclusion from the trading floor for a period of up to five (5) business days. The determination shall be based on the severity of the threat posed to persons on the trading floor, the disruptiveness caused by the actor and the safety and welfare of persons on the trading floor. The Expedited Hearing Officer shall make a ruling at the time of the hearing and a written decision will be provided to the member following the hearing. Members shall not be excluded from electronic trading, but will not be permitted to be physically present on the trading floor for the duration of any exclusion
(ii) For purposes of this Rule, an “officer of the Exchange” shall refer to an officer who is a vice president or higher.
(iii) For purposes of this Rule and the Regulations promulgated thereunder, the “premises immediately adjacent to the trading floor” shall include the following: (1) all premises other than the trading floor that are under Exchange control, and (2) premises in the building where the Exchange maintains its principal office and place of business, namely 1900 Market Street, Philadelphia, Pennsylvania.
(iv) Exclusion from the floor may not be the exclusive sanction for breaches of this Rule and the regulations thereunder. In addition to exclusion, a member may also be subject to a fine or the matter may be referred to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12.
• • •
The procedure to be followed in cases where a pre-set fine of up to $10,000.00 is summarily assessed is as follows:
.01 Notice of Fine. Notice of fine for breach of such regulations shall be given by the issuance of a written citation. Exchange Staff shall serve the written citations that are issued by the Options Exchange Official. The cited party may accept or contest the written citation.
.02 Time and Place of Hearing. If the written citation is contested, the Exchange shall fix a mutually convenient time and place of hearing, notice of which must be given in advance and may be given orally.
.03 Record. An appropriate record shall be kept. The costs of the making of such a transcript, including, but not limited to, the costs for the court reporter, reproduction of the transcript and producing copies thereof, shall be equally borne by the Exchange and by the cited party.
.04 Procedure. The hearing shall be conducted by a Hearing Director appointed by the Chair of the Business Conduct Committee, and will be conducted in whatever manner will permit full presentation of the evidence.
.05 Finding. The finding of the Hearing Director shall be rendered at the close of the hearing. The Hearing Director may decide that: (i) the citation should be overturned; (ii) the citation is valid as issued; or (iii) the citation as issued should be modified to specify either a higher or lower fine than the one on the notice as issued.
.06 Forum Fee. If a person contests a citation imposed under Rule 60 and the citation is upheld by the reviewing body, the reviewing body will impose a forum fee against the person in the amount of $100.
.07 No Right of Appeal. The finding of the Hearing Director shall be final. There shall be no appeal from such finding.
.08 Report to Securities and Exchange Commission (SEC). A report in appropriate form shall be made to the SEC. However, no report shall be made in the case of citations for breaches of regulations relating to order, decorum, health, safety and welfare or administration of the Exchange if a citation is not contested and the fine is $1,000 or less, or if the Hearing Director finds in favor of the appellant.
• • •
The procedure to be followed when a member is to be excluded from the trading floor is as follows:
.01 No Further Right of Appeal. The determination that a member shall be excluded is final. There shall be no appeal from such determination.
.02 Report to the SEC. A report in appropriate form shall be made to the SEC. However, no report shall be made in a case where a clerical employee is excluded for a breach of regulations relating to order, decorum, health, safety and welfare or administration of the Exchange.
In most cases, the Exchange will enforce compliance with Order and Decorum Code pursuant to Rule 60. While ordinarily a finding of a violation will result in the appropriate pre-set fine and/or sanction, an Options Exchange Official or Exchange Staff may refer the matter to the Business Conduct Committee where it shall proceed in accordance with Rules 960.1-960.12.
In the case of repeat violations of a regulation by the same individual, the amount of the fine is determined by the number of such violations which have occurred within the year immediately preceding the current violation.]
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange's Rulebook contains Rule 60, Sanctions for Breach of Regulations, in the Rules of the Exchange. This rule is also repeated in the section of the Rulebook entitled “Regulations” which appears prior to the listing of the various regulations. The Exchange repeated the rule in this section for ease of reference as the regulations were adopted pursuant to
The Exchange is seeking to properly amend Rule 60 in the main Rules at this time by restating the amendments that were requested in 2009 in this filing. The Exchange also proposes to delete the duplicate version of Rule 60 in the Regulations section to avoid further confusion in the future. In order that members and member organizations may understand that the Regulations are adopted pursuant to Rule 60, the Exchange proposes to amend the title of the Regulations section to state, “Regulations Pursuant to Rule 60.”
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
Also, to avoid future confusion among its marker participants, the Exchange proposes to eliminate the Rule 60 version of the rule text which appears in the Regulations section. The Regulations govern conduct on the Exchange's trading floor. The Exchange believes that noting that the Regulations are pursuant to Rule 60 will avoid confusion to members and member organizations subject to these rules because the cross-reference to Rule 60 will be apparent without the need to restate the rule within the Regulations. The Exchange believes this rule change will bring accuracy and clarity to the Rulebook.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange is merely seeking to correct an inadvertent error in the Rule text and proposes other changes to avoid confusion in the future and prevent the possibility of this error occurring again.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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 Brent J. Fields, 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.
Office of the Secretary of Transportation, U.S. Department of Transportation.
Notice.
Pursuant to a recommendation by the Future of Aviation Advisory Committee, the Secretary of Transportation is announcing the third-annual competition to recognize students with the ability to demonstrate unique, innovative thinking in aerospace science and engineering. In its third year, the Secretary has decided to create two divisions within the award: A high school division and a university division (both undergraduate and graduate). The Secretary of Transportation intends to use the awards to incentivize students at high schools and universities to think creatively in developing innovative solutions to aviation and aerospace issues, and to share those innovations with the broader community. This notice extends the deadline for submitting proposals for the RAISE Award and makes other small changes to the prior notices issued in April (79 FR 19167) and May (79 FR 29476) 2014. The Department of Transportation has decided that interested students could benefit from more time to develop proposals for the 2014 competition. Thus, we are extending the dates for submitting expressions of interest to November 14, 2014, and for submitting final packages to 3:00 p.m. Eastern Standard Time on December 30, 2014.
Effective on April 01, 2014 to December 30, 2014.
Patricia Watts, Ph.D., Federal Aviation Administration, (609) 485-5043,
To be eligible to participate in the Secretary's RAISE Award competition, students must be U.S. citizens or permanent residents. For the high school division, the students must have been enrolled in at least one semester (or quarterly equivalent) at a U.S. high school (or equivalent approved home school program) in 2014. For the University division, the student must have been enrolled in a U.S.-based college or university for at least one semester (or quarterly equivalent) in 2014. Students may participate and be recognized as individuals or in teams. Each member of a team must meet the eligibility criteria. An individual may join more than one team. There is no charge to enter the competition.
The following additional rules apply:
1. Candidates shall submit a project in the competition under the rules promulgated by the Department;
2. Candidates shall agree to execute indemnifications and waivers of claims against the Federal government as provided in this Notice;
3. Candidates may not be a Federal entity or Federal employee acting within the scope of employment;
4. Candidates may not be an employee of the Department, including but not limited to the Federal Aviation Administration, or the Research and Innovative Technology Administration;
5. Candidates shall not be deemed ineligible because an individual used Federal facilities or consulted with Federal employees during a competition, if the facilities and employees are made available to all individuals participating in the competition on an equitable basis;
6. The competition is subject to all applicable Federal laws and regulations. Participation constitutes the Candidates' full and unconditional agreement to these rules and to the Secretary's decisions, which are final and binding in all matters related to this competition;
7. Submissions which in the Secretary's sole discretion are determined to be substantially similar to a prior submitted entry may be disqualified;
8. Submissions must be original, be the work of the Candidates, and must not violate the rights of other parties. All submissions remain the property of the applicants. Each Candidate represents and warrants that he, she, or the team, is the sole author and owner of the submission, that the submission is wholly original, that it does not infringe any copyright or any other rights of any third party of which the Candidate is aware, and, if submitted in electronic form, is free of malware;
9. By submitting an entry in this contest, contestants and entrants agree to assume any and all risks and waive any claims against the Federal Government and its related entities (except in the case of willful misconduct) for any injury, death, damage, or loss of property, revenue or profits, whether direct, indirect, or consequential, arising from their participation in this contest, whether the injury, death, damage, or loss arises through negligence of otherwise. Provided, however, that by registering or submitting an entry, contestants and entrants do not waive claims against the Department arising out of the
10. The Secretary and the Secretary's designees have the right to request access to supporting materials from the Candidates;
11. The submissions cannot have been submitted in the same or substantially similar form in any previous Federally-sponsored promotion or Federally-sponsored contest, of any kind;
12. Each Candidate grants to the Department, as well as other Federal agencies with which it partners, the right to use names, likeness, application materials, photographs, voices, opinions, and/or hometown and state for the Department's promotional purposes in any media, in perpetuity, worldwide, without further payment or consideration; and
13. The Secretary collects personal information from Candidates when they enter this competition. The information collected is subject to the ChallengePost privacy policy located at
Candidates are strongly encouraged to send brief expressions of interest, in advance, by November 14, 2014. The expressions of interest should be sent to the contact shown below and should include the following elements: (1) Name of Candidate(s); (2) Name of educational institution(s) with which Candidate(s) are affiliated; (2) Telephone and email addresses for Candidate(s); (3) brief high-level overview of the proposed project.
Final submission packages shall consist of the following elements:
1. Nomination letter from at least one teacher, advisor, faculty member, and others as appropriate. The nomination letter(s) must communicate accomplishments in the following areas:
Evidence of technical merit based upon teacher (parent or legal guardian in the case of home schooled applicants), advisor, or faculty nomination and evaluation of the submitted proposal, written paper, and/or reports.
Evidence of professionalism and leadership may be in the form of, but not limited to:
2. An overall summary of the innovation, not to exceed one page, which includes a title of the project and statement of the impact that the innovation will have on the field of aviation or aerospace;
3. A copy of the student's academic transcript or certified grade report (as applicable);
4. A copy of the paper(s) and related materials describing the innovative concept written by the student(s) being nominated (no page limit).
Once submissions have been received, the Department may request additional information, including supporting documentation, more detailed contact information, releases of liability, and statements of authenticity to guarantee the originality of the work. Failure to respond in a timely fashion may result in disqualification.
All materials should be forwarded with a cover letter to the attention of: Patricia Watts, Ph.D., Centers of Excellence Program Director, Federal Aviation Administration, L-28, FAA William J. Hughes Technical Center, Atlantic City International Airport, NJ 08405.
Hardcopy is preferred; however, the package also may be transmitted by email to
The winner will be announced as soon as possible after the submission date. A trophy with the winner's name and date of award will be displayed at the Department of Transportation and a display copy of the trophy will be sent to the winner's school/college/university. An additional plaque or trophy will be awarded to the individual or team. At the option of the Secretary, the Department will pay for invitational travel expenses to Washington, DC for up to four representatives of the winning teams to present their project to Department officials and receive the award from the Secretary.
All submissions will be initially reviewed by the FAA Centers for Excellence Program Director upon receipt to determine if the submissions meet the eligibility requirements. Registration packages meeting the eligibility requirements will be judged by advisory panels consisting of academic experts, government officials including FAA, the Department, and representatives of the private sector. The advisory panels will select the most highly qualified submissions and present them to the Secretary of the Department, who will select the winning entrant.
Submissions will be judged against other submissions from the same division on the following criteria:
• Has the submission presented a clear understanding of the associated problems?
• Has the submission developed a logical and workable solution and approach to solving the problem/s?
• What are the most significant aspects of this concept?
• Has the submission clearly described the breadth of impact of the innovation?
• Is this concept new or a variation of an existing idea, and in what way(s)?
• How is this work unique?
• Was the concept developed independently or in cooperation with others?
• To what extent will this project make a significant impact and/or contribution to the future of the aviation and aerospace environment?
• Who directly benefits from this work?
• Can this program or activity be implemented in a practical fashion?
• What are the costs anticipated to be incurred and saved by executing this concept?
• How has this individual/group measured the impact on the aviation environment?
• To what extent does the innovation result in measurable improvements?
• Can this effort be scaled?
• Is this work specific to one region, various regions, or to the entire nation?
All factors are important and will be given consideration, but the advisory panels will give the “technical merit” factor the most weight in the screening process. The Secretary retains sole discretion to select the winning entrant.
Federal grantees may not use Federal funds to develop COMPETES Act challenge applications.
Federal contractors may not use Federal funds from a contract to develop COMPETES Act challenge applications or to fund efforts in support of a COMPETES Act challenge submission.
15 U.S.C. 3719 (America COMPETES Act).
Federal Highway Administration (FHWA), DOT.
Notice of request for extension of currently approved information collection.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for renewal of an existing information collection that is summarized below under
Please submit comments by December 8, 2014.
You may submit comments identified by DOT Docket ID Number 2014-0036 by any of the following methods:
Mark Glaze, 202 366-4053, Office of Natural Environment, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. The purpose of this information collection is to acquire the perspectives of FMCSA State partners who support the operation, regulation and enforcement of various mutually-beneficial safety programs. This knowledge will improve the Federal government's understanding of the effectiveness of commercial motor vehicle (CMV) safety related grant programs. The FMCSA is interested in surveying grant recipients to collect information on the strengths, weaknesses, and effectiveness of FMCSA grant programs with the intent of improving our capacity to meet the needs of our grantees. FMCSA needs this information to support program evaluation endeavors, program management, and fiscal decision making. FMCSA will use the results in various analyses conducted by FMCSA designed to assess the effectiveness of existing rules, grant programs, and safety programs.
We request your comments on or before December 8, 2014.
You may submit comments identified by Federal Docket Management System (FDMS) Docket Number FMCSA-2014-0196 using any of the following methods:
•
•
•
•
Mr. Eugene Johnson, Strategic Planning, and Program Evaluation Division, Office of Policy, Strategic Planning and Regulations, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590. Telephone: (202) 366-5490; email
In 2009, the Government Accountability Office (GAO) issued a final report on a FMCSA grant program called Performance Registration Information System Management PRISM. The GAO reported was entitled, “Motor Carrier Safety: Commercial Vehicle Registration Program Has Kept Carriers from Operating, but Effectiveness Is Difficult to Measure, GAO-09-495.” The GAO recommended FMCSA measure the PRISM program's effectiveness when the number of States that have the ability to deny, suspend, or revoke registrations of CMVs operated by OOS carriers is sufficient to make such measurements meaningful.
The authority to require Federal Agencies to monitor grants is 2 CFR Chapter I, and Chapter II Parts 200, 215, 220, 225, and 230 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. OMB Circular A-110, Reports and Records, sections 50 through 53 set forth the procedures for monitoring and reporting on the recipient's financial and program performance and the necessary standard reporting forms.
The Agency proposes to collect the data for this project via electronic mail surveys and conduct clarifying interviews as appropriate. The information collection supports the DOT's Strategic Goal of Safety, and will help confirm whether the program(s) improve public health and safety by reducing transportation-related fatalities and injuries. Therefore, the purpose of this ICR is to conduct a survey using Form MCSA-5888 to evaluate the effectiveness of FMCSA's grant programs through the use of in-person interviews and electronic surveys. The survey will not be statistical in nature, as the intention is to receive the comments of all affected state partners. The survey will not exceed 30 questions and the complexity of the question structure will be Likert scale and short responses. The decision to use the Likert scale over the ordinal scale is the numbers in the ordinal level indicate the relative position of items, but not the magnitude of difference that you get from the Likert scale. For example, the survey will present a question like “The grant funding provided in support of your program is adequate to meet all aspects of the mission.” The response options may include:
The Agency will use this information to establish a baseline of our grant programs from the grantee's perspective for use in future grant-related decision making, to include: (1) Assessing the impacts of proposed rules, (2) identifying potential improvements in its grant supported safety programs, and (3) complement future budget and resource related decisions.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA requests public comment on an application for exemption from Dealers Choice Truckaway System, Inc. (Truckmovers) to allow the use of plastic blocks to build up the height of the front end of a towed vehicle in driveaway-towaway operations. The Federal Motor Carrier Safety Regulations (FMCSRs) permit the use of “hardwood blocks of good quality” for this purpose but the use of materials other than hardwood blocks is not addressed. Truckmovers believes the use of ultra-high molecular polyethylene plastic blocks will maintain a level of safety that is equivalent to the level of safety achieved without the exemption. Truckmovers is requesting the temporary exemption in advance of petitioning FMCSA to conduct a rulemaking to amend 49 CFR 393.71(k)(4) to allow the use of vehicle support blocks made of any suitable material to support the weight of vehicles when towing multiple vehicles in driveaway-towaway operations.
Comments must be received on or before November 7, 2014.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2014-0335 using any of the following methods:
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Mr. Luke W. Loy, Vehicle and Roadside Operations Division, Office of Bus and Truck Standards and Operations, MC-PSV, (202) 366-0676; Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
Section 4007 of the Transportation Equity Act for the 21st Century (TEA- 21) [Pub. L. 105-178, June 9, 1998, 112 Stat. 401] amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs). On August 20, 2004, FMCSA published a final rule (69 FR 51589) implementing section 4007. Under this rule, FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments and determines whether granting the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Truckmovers applied for an exemption from 49 CFR 393.71(k)(4) to allow the use of plastic support blocks in lieu of hardwood blocks to increase the height of a towed vehicle in driveaway-towaway operations. A copy of the application is included in the docket referenced at the beginning of this notice.
In its application, Truckmovers states that without the proposed exemption it will not be able to utilize plastic support blocks because 49 CFR 393.71(k)(4) specifically identifies the use of hardwood blocks to build up the height of the front end of a towed vehicle in driveaway-towaway operations. Truckmovers provided information regarding the development of ultra-high molecular polyethylene plastic blocks with a compression rating of 3,300 psi, which can withstand extreme heat and cold. These plastic blocks are not susceptible to decomposition and erosion like wood blocks, allowing for their re-use. The high compression
In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment from all interested persons on Truckmovers application for an exemption from 49 CFR 393.73(k)(4). All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the
Comments received after the comment closing date will be filed in the public docket and will be considered to the extent practicable. In addition to late comments, FMCSA will continue to file relevant information in the public docket that becomes available after the comment closing date. Interested persons should continue to examine the public docket for new material.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of two vessels whose property and interests in property have been unblocked pursuant to the Cuban Assets Control Regulations, 31 CFR part 515.
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (SDN List) of the two vessels identified in this notice whose property and interests in property were blocked pursuant to Cuban Assets Control Regulations, is effective on September 30, 2014.
Assistant Director, Sanctions Compliance & Evaluation, Department of the Treasury, Office of Foreign Assets Control, Washington, DC 20220, Tel: (202) 622-2490.
The SDN List and additional information concerning OFAC is available from OFAC's Web site (
On September 30, 2014, the Director of OFAC removed from the SDN List the two vessels listed below, whose property and interests in property were blocked pursuant to Cuban Assets Control Regulations:
1. EAST ISLANDS (C4QB) General Cargo 15,120DWT 8,996GRT Cyprus flag (EAST ISLAND SHIPPING CO. LTD. (SDN)) (vessel) [CUBA].
2. SOUTH ISLANDS (C4AN) General Cargo 15,147DWT 8,996GRT Cyprus flag (SOUTH ISLAND SHIPPING CO. LTD. (SDN)) (vessel) [CUBA].
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 12854, Prior Government Service Information.
Written comments should be received on or before December 8, 2014 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the forms and instructions should be directed to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning information collection requirements related to arbitrage restrictions on tax-exempt bonds.
Written comments should be received on or before December 8, 2014 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). The IRS is soliciting comments concerning information collection requirements related to continuation coverage requirements application to group health plans.
Written comments should be received on or before December 8, 2014 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The estimated time per respondent varies from 30 seconds to 330 hours, depending on individual circumstances, with an estimated average of 14 minutes.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8924, Excise Tax on Certain Transfers of Qualifying Geothermal or Mineral Interests.
Written comments should be received on or before December 8, 2014 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning split-dollar life insurance arrangements.
Written comments should be received on or before December 8, 2014 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning subchapter S subsidiaries.
Written comments should be received on or before December 8, 2014 to be assured of consideration.
Direct all written comments Christie Preston, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comment Request
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before. December 8, 2014.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Audrey Revere at (202) 461-5694.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
The provisions of VHA Handbook 1108.05, Outpatient Pharmacy Services, require that, as a condition for dispensing a prescription, the prescription must contain the following patient identifiers:
Local Meds by Mail Desk Procedure utilizes date of birth as an additional patient identifier.
The provisions of VHA Handbook 1108.05, Outpatient Pharmacy Services require pharmacists to review the patient medical record for the presence of allergy information and the potential for adverse drug events prior to the dispensing of medication to the patient.
By direction of the Secretary.
Environmental Protection Agency.
Final rule.
This action finalizes the residual risk and technology review (RTR) conducted for the Acrylic and Modacrylic Fibers Production, Amino/Phenolic Resins Production and Polycarbonate Production source categories regulated under national emission standards for hazardous air pollutants (NESHAP). In addition, we are taking final action addressing emissions during periods of startup, shutdown and malfunction, and are adding standards for previously unregulated hazardous air pollutant (HAP) emissions sources for certain emission points. These changes include revisions made in response to comments received on the proposed rule. These final amendments also include clarifying provisions pertaining to open-ended valves and lines, adding monitoring requirements for pressure relief devices and adding requirements for electronic reporting of performance test results, as proposed. We estimate that these final amendments will reduce HAP emissions from these three source categories by a combined 137 tons per year.
This final action is effective on October 8, 2014.
The Environmental Protection Agency (EPA) has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2012-0133. All documents in the docket are listed in the
For questions about this final action, contact Mr. Nick Parsons, Sector Policies and Programs Division (E143-01), Office of Air Quality Planning and Standards (OAQPS), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (734) 214-4479; fax number: (734) 214-4053; and email address:
Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of these NESHAP, please contact the appropriate person listed in the preceding
In addition to being available in the docket, an electronic copy of this final action will also be available through the EPA's Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas of air pollution control. Following signature by the EPA Administrator, we will post a copy of the final action at:
Additional information is available on the RTR Web site at
Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by December 8, 2014. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to reconsider the rule “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding
Section 112 of the CAA establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems or techniques that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; and/or are design, equipment, work practice or operational standards.
For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements and may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor, under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.
In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
The EPA promulgated the AMF MACT standards on June 29, 1999 (64 FR 34854). The standards are codified at 40 CFR part 63, subpart YY. The AMF industry consists of facilities that produce acrylic and modacrylic fibers, which are manufactured fibers in which the fiber-forming substance is a long-chain synthetic polymer containing acrylonitrile units. The source category covered by this NESHAP currently includes one facility. Sources of HAP emissions from the production of AMF include: (1) Storage vessels used to store acrylonitrile monomer and co-monomers; (2) process vents on reactors, vessels and storage vessels used for acrylic polymerization, monomer recovery, fiber spinning and solvent recovery operations; (3) fugitive emissions from AMF spinning lines; (4) wastewater treatment systems; and (5) equipment leaks.
On January 9, 2014, the EPA published a proposed rule in the
• Revisions to address certain emission sources not previously regulated under the standards.
• Revisions to the leak detection and repair (LDAR) program requirements.
• Revisions to requirements related to emissions during periods of startup, shutdown and malfunction (SSM).
• Revisions to requirements related to performance test electronic reporting.
• Revisions to the provisions regarding open-ended lines.
• Revisions to the requirements related to pressure relief devices (PRDs) that release HAP emissions to the atmosphere instead of routing them to a control device, process, fuel gas system or drain system.
The EPA promulgated the APR MACT standards on January 20, 2000 (65 FR 3276). The standards are codified at 40 CFR part 63, subpart OOO. The APR industry consists of facilities that manufacture amino resins or phenolic resins. The source category covered by this NESHAP currently includes 19 facilities. Sources of HAP emissions from the production of APR include: (1) Reactor batch process vents; (2) non-reactor batch process vents; (3) continuous process vents; (4) equipment leaks; (5) wastewater; (6) storage vessels; and (7) heat exchangers.
On January 9, 2014, the EPA published a proposed rule in the
• Revisions to address certain emission sources not previously regulated under the standards.
• Revisions to the storage vessel and continuous process vent standards.
• Revisions to requirements related to emissions during periods of SSM.
• Revisions to requirements related to performance test electronic reporting.
• Revisions to the provisions regarding open-ended lines.
• Revisions to the requirements related to PRDs that release HAP emissions to the atmosphere rather than routing them to a control device, process, fuel gas system or drain system.
The EPA promulgated the PC MACT standards on June 29, 1999 (64 FR 34854). The standards are codified at 40 CFR part 63, subpart YY. The PC industry consists of facilities that produce polycarbonates, a process that involves a polymerization reaction using either a solution or suspension process in either a batch or continuous mode. All production of polycarbonates in the United States is currently based on the polymerization reaction of bisphenols with phosgene in the presence of catalysts, solvents (mainly methylene chloride) and other additives. The source category covered by this NESHAP currently includes four facilities. Sources of HAP emissions from the production of PC include: (1) Storage vessels used to store methylene chloride and other organic solvents; (2) process vents on polymerization, polymer solution purification and solvent recovery equipment; (3) wastewater treatment systems; and (4) equipment leaks.
On January 9, 2014, the EPA published a proposed rule in the
• Revisions to the LDAR program requirements.
• Revisions to requirements related to emissions during periods of SSM.
• Revisions to requirements related to performance test electronic reporting.
• Revisions to the provisions regarding open-ended lines.
• Revisions to the requirements related to PRDs that release HAP emissions to the atmosphere rather than routing them to a control device, process, fuel gas system or drain system.
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the AMF, APR and PC source categories and amends the AMF, APR and PC MACT standards based on those determinations. This action also finalizes other changes to the NESHAP such as setting emission standards to address certain emission sources not previously regulated; eliminating the exemption for periods of SSM, so that the emission standards in each rule apply at all times; requiring electronic reporting of performance test results; clarifying the provisions regarding open-ended lines by adding a definition for what constitutes a “sealed” open-ended line; requiring monitoring of PRDs in organic HAP service that release to the atmosphere rather than routing emissions to a control device, process, fuel gas system or drain system; and providing that releases of HAP emissions to the atmosphere from such PRDs are prohibited.
For the AMF source category, we have determined that the current MACT standards reduce risk to an acceptable level, provide an ample margin of safety to protect public health, and prevent adverse environmental effects. Therefore, as we proposed, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
We have determined that there have been developments in practices, processes and control technologies that warrant revisions to the MACT standard for this source category. Therefore, to satisfy the requirements of CAA section 112(d)(6) and as we proposed, we are revising the MACT standards to require facilities to comply with the LDAR requirements of 40 CFR part 63, subpart UU, rather than subpart TT, with the exception of connectors in gas and vapor service and in light liquid service. We are retaining the option for facilities to comply with either subpart TT or subpart UU for these components. For storage vessels, process vents, spinning line fugitive emissions and wastewater, we have determined that, as we proposed, there are no viable developments in HAP emission reduction practices, processes or control technologies to apply, considering the technical feasibility, estimated costs, energy implications, non-air environmental impacts and emission reductions of the options identified.
Pursuant to CAA sections 112(d)(2) and (3) and as we proposed, we are establishing standards for previously unregulated HAP emissions from spinning lines that use a spin dope produced from a solution polymerization process at existing facilities. The standard being finalized is an emission limit of 20 kilograms (kg) of organic HAP per megagram (Mg) (40 pounds (lb) of organic HAP per ton) of acrylic and modacrylic fiber produced, which represents the MACT floor level of control.
For the APR source category, we have determined that the current MACT standards reduce risk to an acceptable level, provide an ample margin of safety to protect public health and prevent adverse environmental effects. Therefore, as we proposed, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
We have determined that there have been developments in practices, processes and control technologies that warrant revisions to the MACT standard for this source category. Therefore, to satisfy the requirements of CAA section 112(d)(6), we are revising the applicability of the APR new source MACT standards as we proposed to include smaller capacity storage vessels and/or storage vessels containing liquids with lower vapor pressures. Emissions reduction of 95 percent is now required for storage vessels of capacities greater than or equal to 20,000 gallons (gal), but less than 40,000 gal if the maximum true vapor pressure (MTVP) is 1.9 pounds per square inch absolute (psia) or greater, and for storage vessels of capacities greater than or equal to 40,000 gal, but less than 90,000 gal if the MTVP is 0.75 psia or greater. Control is also still required for storage
Pursuant to CAA sections 112(d)(2) and (3), we are establishing standards for previously unregulated HAP emissions from storage vessels and continuous process vents at existing facilities. For storage vessels, the standard being finalized is the same as what we proposed and requires 95 percent emissions reduction for storage vessels of capacities greater than or equal to 20,000 gal, but less than 40,000 gal if the MTVP is 1.9 psia or greater, for storage vessels of capacities greater than or equal to 40,000 gal, but less than 90,000 gal if the MTVP is 0.75 psia or greater, and for storage vessels of 90,000 gal or greater, if the MTVP is 0.15 psia or greater, which represents a beyond-the-floor level of control. For continuous process vents, the standard being finalized establishes an emission limit of 0.95 kg of organic HAP per Mg (1.9 lb organic HAP per ton) of resin produced, which represents the MACT floor level of control. However, the calculation of the MACT floor has been revised since proposal.
For the PC source category, we have determined that the current MACT standards reduce risk to an acceptable level, provide an ample margin of safety to protect public health and prevent adverse environmental effects. Therefore, as we proposed, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
We have determined that there have been developments in practices, processes and control technologies that warrant revisions to the MACT standard for this source category. Therefore, to satisfy the requirements of CAA section 112(d)(6) and as we proposed, we are revising the MACT standards to require facilities to comply with the LDAR requirements of 40 CFR part 63, subpart UU, rather than subpart TT, with the exception of connectors in gas and vapor service and in light liquid service. We are retaining the option for facilities to comply with either subpart TT or subpart UU for these components. For storage vessels, process vents and wastewater treatment systems, we have determined that, as we proposed, there are no viable developments in HAP emission reduction practices, processes or control technologies to apply to the emission sources in these source categories, considering the technical feasibility, estimated costs, energy implications, non-air environmental impacts and emission reductions of the options identified.
In its 2008 decision in
We have eliminated the SSM exemption in these rules. Consistent with
In establishing the standards in these final rule amendments, the EPA has taken into account startup and shutdown periods and, for the reasons explained below, has not established alternate standards for these periods for the AMF, APR and PC MACT standards. Emission reductions for process vents and transfer operations are typically achieved by routing vapors to a control device such as a thermal oxidizer or carbon adsorber. It is common practice to start a control device prior to startup of the emissions source it is controlling, so the control device would be operating before emissions are routed to it. We expect control devices would be operating during startup and shutdown events in a manner consistent with normal operating periods, and that these control devices will be operated to maintain and meet the monitoring parameter operating limits set during the performance test. We do not expect startup and shutdown events to affect emissions from equipment leaks, wastewater sources (e.g., surface impoundments, oil-water separators, organic-water separators) or storage tanks. Leak detection programs associated with equipment leaks are in place to detect leaks, and, therefore, it is inconsequential whether the process is operating under normal operating conditions or is in startup or shutdown. Wastewater emissions are also not expected to be significantly affected by startup or shutdown events. Working and breathing losses from storage tanks are the same regardless of whether the process is operating under normal operating conditions or is in a startup or shutdown event.
Periods of startup, normal operations and shutdown are all predictable and routine aspects of a source's operations. However, by contrast, malfunctions are a sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner. See 40 CFR 63.2. The EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards. Under section 112, emission standards for new sources must be no less stringent than the level “achieved” by the best controlled similar source and, for existing sources, generally must be no less stringent than the average emission limitation “achieved” by the best performing 12 percent of sources in the category. There is nothing in section
Further, accounting for malfunctions in setting emission standards would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the source categories amended with this action, and given the difficulties associated with predicting or accounting for the frequency, degree and duration of various malfunctions that might occur. As such, the performance of units that are malfunctioning is not “reasonably” foreseeable. See, e.g.,
In the event that a source fails to comply with the applicable CAA section 112 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112 standard was, in fact, “sudden, infrequent, not reasonably preventable” and was not instead “caused in part by poor maintenance or careless operation.” 40 CFR 63.2 (definition of malfunction).
If the EPA determines in a particular case that enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.
In summary, the EPA interpretation of the CAA and in particular, section 112 is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations.
In several prior CAA section 112 rules and in the proposed rule, the EPA had included an affirmative defense to civil penalties for violations caused by malfunctions in an effort to create a system that incorporates some flexibility, recognizing that there is a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission standards may be violated under circumstances entirely beyond the control of the source. Although the EPA recognized that its case-by-case enforcement discretion provides sufficient flexibility in these circumstances, it included the affirmative defense to provide a more formalized approach and more regulatory clarity. See
Refer to the explanations below and section VII of this preamble and the comment summary and response document, available in the docket for this action, for further discussion regarding SSM-related changes made to the AMF, APR and PC MACT standards.
For the APR MACT standards, we are revising the General Provisions applicability table (Table 1 to Subpart OOO) entry for 40 CFR 63.6(e)(1)(i) by changing the explanation in column 3. 40 CFR 63.6(e)(1)(i) describes the general duty to minimize emissions. Some of the language in that section is no longer necessary or appropriate in light of the elimination of the SSM exemption. Similarly, for the AMF and PC source categories, we are also removing this requirement at 40 CFR 63.1108(a)(5). For the AMF, APR and PC MACT standards, we are instead adding general duty regulatory text at 40 CFR 63.1108(a)(4)(ii) and 63.1400(k)(4) that reflects the general duty to minimize emissions while eliminating the reference to periods covered by an SSM exemption. The current language in 40 CFR 63.6(e)(1)(i) characterizes what the general duty entails during periods of SSM. With the elimination of the SSM exemption, there is no need to differentiate between normal operations, startup and shutdown and malfunction events in describing the general duty. Therefore, the language the EPA is promulgating for 40 CFR 63.1108(a)(4)(ii) and 63.1400(k)(4) does not include that language from 40 CFR 63.6(e)(1).
For the APR MACT standards, we are also revising the General Provisions applicability table (Table 1 to Subpart OOO) entry for 40 CFR 63.6(e)(1)(ii) by changing the “yes” in the second column to a “no.” 40 CFR 63.6(e)(1)(ii) imposes requirements that are not necessary with the elimination of the SSM exemption or are redundant with the general duty requirement being added at 40 CFR 63.1400(k)(4).
For the APR MACT standards, we are revising the General Provisions applicability table (Table 1 to Subpart OOO) entry for 40 CFR 63.6(e)(3) by changing the “yes” in the second column to a “no.” Similarly, for the AMF and PC source categories, we are also removing this requirement at 40 CFR 63.1111(a). Generally, these paragraphs require development of an SSM plan and specify SSM recordkeeping and reporting requirements related to the SSM plan. As noted, the EPA is removing the SSM exemptions. Therefore, affected units will be subject to an emission standard during such events. The applicability of a standard during such events will ensure that sources have ample incentive to plan for and achieve compliance and thus the SSM plan requirements are no longer necessary.
For the APR MACT standards, we are revising the General Provisions applicability table (Table 1 to Subpart OOO) entry for 40 CFR 63.6(f)(1) by changing the “yes” in the second column to a “no.” The current language of 40 CFR 63.6(f)(1) exempts sources from non-opacity standards during periods of SSM. As discussed above, the court in
For the APR MACT standards, we are revising the General Provisions applicability table (Table 1 to Subpart OOO) entry for 40 CFR 63.7(e)(1) by changing the “yes” in the second column to a “no.” 40 CFR 63.7(e)(1) describes performance testing requirements. Similarly, for the AMF and PC source categories, we are also revising this requirement at 40 CFR 63.1108(b)(4)(ii). The EPA is instead adding a performance testing requirement at 40 CFR 63.1108(b)(4)(ii) and 63.1413(a)(2). The performance testing requirements we are adding differ from the General Provisions performance testing provisions in several respects. The regulatory text does not include the language in 40 CFR 63.7(e)(1) that restated the SSM exemption and language that precluded startup and shutdown periods from being considered “representative” for purposes of performance testing. The revised performance testing provisions do not allow performance testing during periods of startup or shutdown. As in 40 CFR 63.7(e)(1), performance tests conducted under this subpart should not be conducted during malfunctions because conditions during malfunctions are not representative of normal operating conditions. The EPA is adding language that requires the owner or operator to record the process information that is necessary to document operating conditions during the test and include in such record an explanation to support that such conditions represent normal operation. 40 CFR 63.7(e) requires that the owner or operator make available to the Administrator such records “as may be necessary to determine the condition of the performance test” available to the Administrator upon request, but does not specifically require the information to be recorded. The regulatory text the EPA is adding to this provision builds on that requirement and makes explicit the requirement to record the information.
For the APR MACT standards, we are revising the General Provisions applicability table (Table 1 to Subpart OOO) entries for 40 CFR 63.8(c)(1)(i) and (iii) by changing the “yes” in the second column to a “no.” The cross-references to the general duty and SSM plan requirements in those subparagraphs are not necessary in light of other requirements of 40 CFR 63.8 that require good air pollution control practices (40 CFR 63.8(c)(1)) and that set out the requirements of a quality control program for monitoring equipment (40 CFR 63.8(d)).
For the AMF, APR and PC MACT standards, the EPA is adding recordkeeping requirements during a malfunction to 40 CFR 63.1111(c)(1) and
For the APR MACT standards, we are revising the General Provisions applicability table (Table 1 to Subpart OOO) entry for 40 CFR 63.10(d)(5) by changing the “yes” in the second column to a “no.” 40 CFR 63.10(d)(5) describes the reporting requirements for SSM. Similarly, for the AMF and PC source categories, we are also removing this requirement at 40 CFR 63.1111(b). To replace the General Provisions reporting requirement, the EPA is adding reporting requirements to 40 CFR 63.1111(c)(2) and 63.1417(g). The replacement language differs from the General Provisions requirement in that it eliminates periodic SSM reports as a stand-alone report. We are promulgating language that requires sources that fail to meet an applicable standard at any time to report the information concerning such events in the semi-annual periodic report already required under these rules. We are promulgating that the report must contain the number, date, time, duration and cause of such events (including unknown cause, if applicable), a list of the affected source or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit and a description of the method used to estimate the emissions.
Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available or engineering judgment based on known process parameters. The EPA is promulgating this requirement to ensure that there is adequate information to determine compliance, to allow the EPA to determine the severity of the failure to meet an applicable standard, and to provide data that may document how the source met the general duty to minimize emissions during a failure to meet an applicable standard.
We will no longer require owners or operators to determine whether actions taken to correct a malfunction are consistent with an SSM plan, because plans will no longer be required. The final amendments therefore eliminate the cross reference to 40 CFR 63.10(d)(5)(i) that contains the description of the previously required SSM report format and submittal schedule from this section. These specifications are no longer necessary because the events will be reported in otherwise required reports with similar format and submittal requirements.
For the APR MACT standards, we are revising the General Provisions applicability table (Table 1 to Subpart OOO) entry for 40 CFR 63.10(d)(5)(ii) by changing the “yes” in the second column to a “no.” 40 CFR 63.10(d)(5)(ii) describes an immediate report for startups, shutdown and malfunctions when a source failed to meet an applicable standard but did not follow the SSM plan. We will no longer require owners or operators to report when actions taken during a startup, shutdown or malfunction were not consistent with an SSM plan, because plans will no longer be required.
PRDs are designed to remain closed during normal operation and only release as the result of unplanned and/or unpredictable events. A release from a PRD usually occurs during an over pressurization of the system. In some source configurations, emissions from PRDs are captured and routed to a control device, process, fuel gas system or drain system, and, therefore, do not result in a net increase of HAP emissions from the source than would otherwise be the case if the source met all other applicable HAP emission limits. However, emissions vented to the atmosphere by PRDs in organic HAP service contain HAP that are otherwise regulated under the MACT standards that apply to these source categories, and if such releases to the atmosphere occur there will be a net increase in source HAP emissions even if the source otherwise complies with all other applicable HAP limits.
The original MACT standards for these source categories regulated PRDs through equipment leak provisions that applied only after the pressure release occurred. In addition, the rules followed the EPA's former practice of exempting SSM events from otherwise applicable emission standards. Consequently, the original MACT standards did not restrict emissions of organic HAP from PRDs to the atmosphere as a result of malfunction but instead treated them the same as all malfunctions through the SSM exemption provision.
In
To ensure compliance with this amendment, we are also requiring that sources subject to these three MACT standards monitor PRDs in organic HAP service that release to the atmosphere by using a device or system that is capable of identifying and recording the time and duration of each pressure release and of notifying operators immediately that a pressure release is occurring. Owners or operators are required to keep records and report any pressure release and the amount of organic HAP released to the atmosphere with the next periodic report. As with the prohibition, this monitoring requirement does not apply to PRDs for which HAP releases are captured and routed to a control device, process, fuel gas system or drain system.
Pressure release events from PRDs in organic HAP service to the atmosphere have the potential to emit large quantities of uncontrolled and unmeasured HAP. Where a pressure release occurs, it is important to identify and mitigate it as quickly as possible. As defined in the MACT standards, PRDs are valves used only to release unplanned, nonroutine discharges. A PRD discharge results from an operator error, a malfunction such as a power failure or equipment failure, or other unexpected cause that requires immediate venting of gas from process equipment in order to avoid safety hazards or equipment damage. Even so,
If the EPA determines in a particular case that enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.
In summary, the EPA interpretation of the CAA and in particular, section 112 is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations.
Some sources are configured such that PRDs can be effectively used to address safety issues without consequently adding HAP emissions to the atmosphere beyond those that are otherwise allowed under applicable limits. We also recognize, however, that it is not always technically possible to route emissions from all PRDs to a control device, process, fuel gas system or drain system. With respect to these PRDs that vent to the atmosphere, instead, we have provided a balanced approach designed to minimize emissions while recognizing that these events may be unavoidable even in a well-designed and maintained (if, albeit, uncontrolled with respect to PRDs) system.
For purposes of estimating the costs of the new requirement to monitor HAP releases to the atmosphere from PRDs, we assumed that operators would install electronic indicators on each PRD in organic HAP service that vents to the atmosphere (rather than to a control device, process, fuel gas system or drain system) to identify and record the time and duration of each pressure release. However, we are allowing owners or operators to use a range of methods to satisfy these requirements, including the use of a parameter monitoring system (that may already be in place) on the process system or piping that is sufficient to notify operators immediately that a release is occurring, as well as recording the time and duration of the pressure release. Based on our cost assumptions that the most expensive approach would be used, the nationwide capital cost of installing these monitors is $37,000, $400,000 and $51,000 for the AMF, APR and PC source categories, respectively. The total annualized cost of installing and operating these monitors is $5,300, $60,000 and $7,200 per year for the AMF, APR and PC source categories, respectively.
The AMF MACT standards at 40 CFR 63.1103(b)(3) and the PC MACT standards at 40 CFR 63.1103(d)(3) require an owner or operator to control emissions from equipment leaks according to the requirements of 40 CFR part 63, subpart UU. The APR MACT standards at 40 CFR 63.1410 also require that equipment leaks be controlled according to subpart UU. For open-ended valves and lines, subpart UU requires that the open end be equipped with a cap, blind flange, plug or second valve that “shall seal the open end at all times.” However, neither subpart UU, nor the AMF, APR or PC MACT standards, define “seal” or explain in practical and enforceable terms what constitutes a sealed open-ended valve or line. This has led to uncertainty on the part of the owner or operator as to whether compliance is being achieved. Inspections under the EPA's Air Toxics LDAR initiative have provided evidence that while certain open-ended lines may be equipped with a cap, blind flange, plug or second valve, they are not operating in a “sealed” manner as the EPA interprets that term.
In response to this uncertainty, we are amending 40 CFR 63.1103(b)(2) (for the AMF MACT standards), 40 CFR 63.1402(b) (for the APR MACT standards) and 40 CFR 63.1103(d)(2) (for the PC MACT standards) to clarify what is meant by “seal.” This amendment clarifies that, for the purpose of complying with the requirements of 40 CFR 63.1033(b) of subpart UU, open-ended valves and lines are “sealed” by the cap, blind flange, plug or second valve when there are no detectable emissions from the open-ended valve or line at or above an instrument reading of 500 ppm.
As stated in the preamble to the proposed rule, the EPA is taking a step to increase the ease and efficiency of data submittal and data accessibility. Specifically, the EPA is requiring owners and operators of AMF, APR and PC facilities to submit electronic copies of certain required performance test reports.
Data will be collected by direct computer-to-computer electronic transfer using EPA-provided software. This EPA-provided software is an electronic performance test report tool called the Electronic Reporting Tool (ERT). The ERT will generate an electronic report package which will be submitted to the Compliance and Emissions Data Reporting Interface (CEDRI) and then archived to the EPA's Central Data Exchange (CDX). A description and instructions for use of the ERT can be found at:
The requirement to submit performance test data electronically to the EPA does not create any additional performance testing and will apply only to those performance tests conducted using test methods that are supported by the ERT. A listing of the pollutants and test methods supported by the ERT is available at the ERT Web site. The EPA believes, through this approach, industry will save time in the performance test submittal process.
State, local and tribal agencies may benefit from more streamlined and accurate review of performance test data that will become available to the public through WebFIRE. Additionally, performance test data will become available to the public through WebFIRE. Having such data publicly available enhances transparency and accountability. For a more thorough discussion of electronic reporting of performance tests using direct computer-to-computer electronic transfer and using EPA-provided software, see the discussion in the preamble of the proposal.
In summary, in addition to supporting regulation development, control strategy development and other air pollution control activities, having an electronic database populated with performance test data will save industry, state, local, tribal agencies and the EPA significant time, money and effort while improving the quality of emission inventories and, air quality regulations.
The revisions to the MACT standards being promulgated in this action are effective on October 8, 2014.
The compliance date for existing AMF, APR and PC sources to comply with the revised SSM requirements (other than PRD monitoring) is the effective date of the standard, October 8, 2014. We are finalizing these compliance dates because these requirements should be immediately implementable by the facilities upon the next occurrence of a malfunction or a performance test that is required to be submitted to the ERT. Available information suggests that the facilities should already be able to comply with the existing standards during periods of startup and shutdown.
The compliance date for AMF, APR and PC sources that commenced construction or reconstruction on or before January 9, 2014, to comply with the PRD monitoring requirements is 3 years from the effective date of the promulgated standards, October 9, 2017. This time is needed regardless of whether an owner or operator of a facility chooses to comply with the PRD monitoring provisions by installing PRD release indicator systems and alarms, employing parameter monitoring or by routing releases to a control device, process, fuel gas system or drain system. This time period will allow facilities to research equipment and vendors, purchase, install, test and properly operate any necessary equipment by the compliance date.
The compliance date for existing AMF, APR and PC sources to comply with the operating and pressure release management requirements for PRDs, along with the other SSM-related revisions, is the effective date of the promulgated standards, October 8, 2014. We are finalizing these compliance dates because these requirements are the same as those contained in 40 CFR part 63, subpart UU, with which facilities are already complying as part of the existing MACT standards.
The compliance date for the one existing AMF source to comply with the new solution polymerization spinning line requirements is the effective date of the promulgated standards, October 8, 2014. This facility is already complying with these requirements and no additional time to come into compliance is warranted.
The compliance date for existing APR sources to comply with the new MACT standards applicable to continuous process vents and storage vessels is 3 years from the effective date of the promulgated standards, October 9, 2017. This time period will allow facilities to purchase, install and test any necessary equipment.
The compliance date for existing AMF and PC sources to comply with the revised equipment leak standards is 1 year from the effective date of the promulgated standards, October 8, 2015. Our data indicate that the one AMF facility and some of the PC facilities are currently complying with 40 CFR part 63, subpart TT requirements and will need time to purchase, install and test any necessary equipment and modify their existing LDAR programs.
New sources that commenced or commence construction or reconstruction after January 9, 2014, must comply with the all of the revised standards immediately upon the effective date of the standard, October 8, 2014, or upon startup, whichever is later.
For each issue, this section provides a description of what we proposed and finalized for the issue, the EPA's rationale for the final decisions and amendments and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.
For the AMF source category, the results of the inhalation risk assessment indicated the maximum lifetime individual cancer risk could be up to 20-in-1 million, the estimated maximum chronic non-cancer target organ-specific hazard index (TOSHI) value was 0.1 and the estimated maximum off-facility site acute HQ value was 0.08, based on the actual emissions level and the AEGL-1 value for acrylonitrile. The total estimated national cancer incidence from the one AMF facility based on actual emission levels was 0.006 excess cancer cases per year or one case in every 170 years. The EPA proposed that no amendments were needed for this source category based on the risk review under CAA section 112(f). See 79 FR 1697-1700 (January 9, 2014).
For the AMF source category, the risk review has not changed since proposal.
For the AMF source category, the comments received on the proposed risk review were generally supportive. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The results of the risk assessment for the AMF source category did not change from proposal and, therefore, they did not affect our determinations regarding risk acceptability and ample margin of safety. The full results of the risk assessment for the AMF source category can be found in the risk assessment documentation available in the docket for this action (EPA-HQ-OAR-2012-0133).
Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for the source categories addressed in this final rule. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are health-protective. A discussion of the
In accordance with the approach established in the Benzene NESHAP, the EPA weighed all health risk measures and information considered in the risk acceptability determination, along with additional factors relating to the appropriate level of control, including the costs and economic impacts of emissions controls, technological feasibility, uncertainties and other relevant factors in making our risk acceptability and ample margin of safety determination. Considering all of these factors, the EPA has determined that the risks from the AMF source category are acceptable and that the current MACT standards in 40 CFR part 63, subpart YY for the AMF source category provide an ample margin of safety to protect public health.
For the AMF source category, the EPA proposed to eliminate the less stringent of two currently available options for complying with LDAR program requirements, while retaining the more stringent compliance requirement. The AMF MACT standards previously required compliance with either subpart TT or subpart UU of 40 CFR part 63 to control emissions from equipment leaks. As part of the technology review for the AMF source category, we proposed to require facilities to comply with subpart UU rather than subpart TT, with the exception of connectors in gas and vapor service and in light liquid service. We proposed to retain the option to comply with either subpart TT or subpart UU for those components. See 79 FR 1700-1701.
For the AMF source category, the technology review has not changed since proposal.
For the AMF source category, the comments received on the proposed technology review were generally supportive. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The results of the technology review for the AMF source category did not change from proposal. Therefore the EPA is requiring AMF facilities to comply with 40 CFR part 63, subpart UU rather than 40 CFR part 63, subpart TT, with the exception of connectors in gas and vapor service and in light liquid service. Facilities continue to have the option to comply with either subpart TT or subpart UU for those components.
For the AMF source category, the EPA identified the absence of an emissions limit for spinning lines that use a spin dope produced from a solution polymerization process at existing AMF facilities. Pursuant to CAA sections 112(d)(2) and (3), we proposed to establish an emissions limit of 20 kg organic HAP-Mg (40 lb organic HAP-ton) of acrylic and modacrylic fiber produced for this emission point, which represented the MACT floor emissions limit. See 79 FR 1697.
For the AMF source category, the emissions limit for spinning lines that use a spin dope produced from a solution polymerization process at existing AMF facilities has not changed since proposal.
For the AMF source category, the comments received on the proposed emissions limit for spinning lines that use a spin dope produced from a solution polymerization process at existing AMF facilities were generally supportive. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The analysis of the emissions limit for spinning lines that use a spin dope produced from a solution polymerization process at existing AMF facilities did not change from proposal. Therefore, the EPA is establishing an emissions limit at the MACT floor for this emission point: 20 kg organic HAP-Mg (40 lb organic HAP-ton) of acrylic and modacrylic fiber produced.
For each issue, this section provides a description of what we proposed and finalized for the issue, the EPA's rationale for the final decisions and amendments and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.
For the APR source category, the results of the inhalation risk assessment indicated the maximum lifetime individual cancer risk could be up to 9-in-1 million, the estimated maximum chronic non-cancer TOSHI value was 0.2 and the estimated maximum off-facility site acute hazard quotient (HQ) value was 10, based on the actual emissions level and the reference exposure level (REL) value for formaldehyde. The total estimated national cancer incidence from APR facilities based on actual emission levels was 0.001 excess cancer cases per year or one case in every 1,000 years. The EPA proposed that no amendments were needed for this source category based on the risk review under CAA section 112(f). See 79 FR 1703-1706.
For the APR source category, we received information indicating that an additional facility should have been included in the risk assessment for this source category. Using information submitted by this facility, we revised the risk assessment for this source category. The MIR increased from 9- to 20-in-1 million, the annual cancer incidence increased from 0.001 to 0.002
For the APR source category, the comments received on the proposed risk review were generally supportive. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The results of the revised risk assessment did not significantly change the maximum risk levels to the most exposed individual for this source category and did not affect our determinations regarding risk acceptability and ample margin of safety. The full results of the revised risk assessment for this source category can be found in the risk assessment documentation available in the docket for this action (EPA-HQ-OAR-2012-0133).
Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for the source categories addressed in this final rule. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are health-protective. A discussion of the uncertainties in the emissions datasets, dispersion modeling, inhalation exposure estimates and dose-response relationships is provided in the preamble to the proposed rule. See 79 FR 1684.
In accordance with the approach established in the Benzene NESHAP, the EPA weighed all health risk measures and information considered in the risk acceptability determination, along with additional factors relating to the appropriate level of control, including the costs and economic impacts of emissions controls, technological feasibility, uncertainties and other relevant factors in making our risk acceptability and ample margin of safety determination. Considering all of these factors, the EPA has determined that the risks from the APR source category are acceptable and that the current MACT standards in 40 CFR part 63, subpart OOO for the APR source category provide an ample margin of safety to protect public health.
For the APR source category, the EPA proposed to change the thresholds at which emission controls are required for storage vessels at new sources to be consistent with other storage vessel standards already required for the chemical industry regulated by the Hazardous Organic NESHAP for Synthetic Organic Chemical Manufacturing Industry (HON). We proposed to revise the applicability of the APR new source MACT standards to include smaller capacity storage vessels and/or storage vessels containing liquids with lower vapor pressures. An emissions reduction of 95 percent was proposed for storage vessels of capacities greater than or equal to 20,000 gal, but less than 40,000 gal if the MTVP is 1.9 psia or greater, and for storage vessels of capacities greater than or equal to 40,000 gal, but less than 90,000 gal if the MTVP is 0.75 psia or greater. Control was proposed to still be required for storage vessels of 90,000 gal or greater, if the MTVP is 0.15 psia or greater, as was previously required for storage vessels at new sources in the APR source category. See 79 FR 1706-1707.
For the APR source category, the technology review has not changed since proposal.
For the APR source category, the comments received on the proposed technology review were generally supportive. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The results of the technology review for the APR source category did not change from proposal. Therefore the EPA is changing the thresholds at which emission controls are required for storage vessels at new sources to be consistent with other storage vessel standards already required for the chemical industry regulated by the HON. An emissions reduction of 95 percent is now required for storage vessels of capacities greater than or equal to 20,000 gal, but less than 40,000 gal if the MTVP is 1.9 psia or greater, and for storage vessels of capacities greater than or equal to 40,000 gal, but less than 90,000 gal if the MTVP is 0.75 psia or greater. Control is still required for storage vessels of 90,000 gal or greater, if the MTVP is 0.15 psia or greater, as was previously required for
For the APR source category, the EPA identified the absence of an emissions limit for storage vessels and continuous process vents at existing APR facilities. Pursuant to CAA sections 112(d)(2) and (3), for storage vessels, we proposed thresholds at which emission controls are required consistent with other storage vessel standards already required for the chemical industry regulated by the HON. An emissions reduction of 95 percent was proposed for storage vessels of capacities greater than or equal to 20,000 gal, but less than 40,000 gal if the MTVP is 1.9 psia or greater, for storage vessels of capacities greater than or equal to 40,000 gal, but less than 90,000 gal if the MTVP is 0.75 psia or greater, and for storage vessels of 90,000 gal or greater if the MTVP is 0.15 psia or greater. This represented a beyond-the-floor level of control for storage vessels at existing facilities.
Pursuant to CAA sections 112(d)(2) and (3), for continuous process vents, we proposed that existing facilities reduce organic HAP emissions either by 85 percent or to a concentration of 20 parts per million by volume (ppmv), when using a combustion control device, or to a concentration of 50 ppmv when using a non-combustion control device. This represented the MACT floor level of control for continuous process vents at existing facilities. See 79 FR 1701-1703.
For the APR source category, the emissions limit for storage vessels at existing APR facilities has not changed since proposal. However, the emissions limit for continuous process vents at existing APR facilities has been revised to establish an emission limit of 0.95 kg organic HAP/Mg (1.9 lb organic HAP/ton) of resin produced for continuous process vents.
The following is a summary of the significant comments received on the proposed APR emissions limits and our responses to these comments. The complete list of the comments received and our responses to those comments can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The analysis of the emissions limit for storage vessels at existing APR facilities has not changed since proposal. Therefore, the EPA is establishing an emissions limit for storage vessels consistent with other storage vessel standards already required for the chemical industry regulated by the HON. An emissions reduction of 95 percent is required for storage vessels of
The analysis of the emissions limit for continuous process vents at existing APR facilities has been revised to reflect new data submitted by industry during the comment period. As part of their comments, Georgia Pacific identified two additional facilities as having continuous process vents, bringing the total to four facilities in the APR source category that have continuous process vents (Tembec in Toledo, OH, and Georgia Pacific facilities in Crossett, AR, Taylorsville, MS, and Conway, NC). All but one of the continuous process vents at these facilities come from dryers on the amino/phenolic resin process unit (APPU). Based on historical emissions and production information submitted by these facilities, we have determined that the MACT floor for continuous process vents is an emission limit of 0.95 kg organic HAP/Mg (1.9 lb organic HAP/ton) of resin produced. For further details on how the MACT floor was calculated for continuous process vents, see the technical memorandum titled,
As part of our beyond-the-floor analysis, we considered control options more stringent than the MACT floor and identified one such option. For the beyond-the-floor option, we evaluated the impact of requiring a 98-percent emissions reduction, assuming that a regenerative thermal oxidizer would be used to achieve this increased level of control.
Table 3 presents the impacts for the MACT floor and the beyond-the-floor option considered. As seen in Table 3, the MACT floor level of control is expected to reduce HAP emissions by approximately 135 tpy and have a cost effectiveness of $6,400/ton of HAP removed. For the beyond-the-floor option, we estimated the capital costs to be approximately $9 million, and the total annualized costs are estimated to be approximately $3 million. The estimated HAP emissions reduction is approximately 181 tpy, and the incremental cost effectiveness between the MACT floor and the beyond-the-floor option is approximately $74,000/ton.
For further details on the assumptions and methodologies used in this analysis, see the technical memorandum titled,
While, as discussed in section V.A above, the continuous process vent control options are not needed to support the EPA's finding under CAA section 112(f) that the APR MACT standards already protect public health with an ample margin of safety, and while we do not factor quantified risk reductions into CAA section 112(d)(2) beyond-the-floor analyses, for informational purposes we note that the beyond-the-floor option for continuous process vents would not reduce the MIR or the maximum chronic non-cancer TOSHI for the source category because neither the MIR nor the non-cancer TOSHI is caused by emissions from continuous process vents.
Based on this analysis, we do not believe the costs of the beyond-the-floor option are reasonable, given the level of HAP emissions reduction that would be achieved with this control option. Therefore, we are revising the APR MACT standards to require the MACT floor level of control for continuous process vents at existing APR sources.
For each issue, this section provides a description of what we proposed and finalized for the issue, the EPA's rationale for the final decisions and amendments and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.
For the PC source category, the results of the inhalation risk assessment indicated the maximum lifetime individual cancer risk could be up to 0.3-in-1 million, the estimated maximum chronic non-cancer TOSHI value was 0.04 and the estimated maximum off-facility site acute HQ value was 2, based on the actual emissions level and the REL value for triethylamine. The total estimated national cancer incidence from PC facilities based on actual emission levels is 0.00008 excess cancer cases per year or one case in every 13,000 years. The EPA proposed that no amendments were needed for this source category based on the risk review under CAA section 112(f). See 79 FR 1707-1709.
For the PC source category, the risk review has not changed since proposal.
For the PC source category, the comments received on the proposed risk review were generally supportive. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The results of the risk assessment for the PC source category did not change
Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for the source categories addressed in this final rule. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are health-protective. A discussion of the uncertainties in the emissions datasets, dispersion modeling, inhalation exposure estimates and dose-response relationships is provided in the preamble to the proposed rule. See 79 FR 1684.
In accordance with the approach established in the Benzene NESHAP, the EPA weighed all health risk measures and information considered in the risk acceptability determination, along with additional factors relating to the appropriate level of control, including the costs and economic impacts of emissions controls, technological feasibility, uncertainties and other relevant factors in making our risk acceptability and ample margin of safety determination. Considering all of these factors, the EPA has determined that the risks from the PC source category are acceptable and that the current MACT standards in 40 CFR part 63, subpart YY for the PC source category provide an ample margin of safety to protect public health.
For the PC source category, the EPA proposed to eliminate the less stringent of two currently available options for complying with LDAR program requirements—while retaining the more stringent compliance requirement. The PC MACT standards previously required compliance with either subpart TT or subpart UU of 40 CFR part 63 to control emissions from equipment leaks. As part of the technology review for the PC source category, we proposed to require facilities to comply with subpart UU rather than subpart TT, with the exception of connectors in gas and vapor service and in light liquid service. We proposed to retain the option to comply with either subpart TT or subpart UU for those components. See 79 FR 1709-1710.
For the PC source category, the technology review has not changed since proposal.
For the PC source category, the comments received on the proposed technology review were generally supportive. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The results of the technology review for the PC source category did not change from proposal. Therefore the EPA is requiring PC facilities to comply with 40 CFR part 63, subpart UU rather than 40 CFR part 63, subpart TT, with the exception of connectors in gas and vapor service and in light liquid service. Facilities continue to have the option to comply with either subpart TT or subpart UU for those components.
For each issue, this section provides a description of what we proposed and finalized for the issue, the EPA's rationale for the final decisions and amendments and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.
We proposed to eliminate the SSM exemption from all three source categories and that the existing or revised standards would apply at all times. We took into account startup and shutdown periods and did not propose alternate standards for those periods because facilities in these source categories did not indicate that they would be unable to comply with the standards during these times and our assessment of the control technology used confirms that the standards can be met during periods of startup and shutdown. We also proposed to add provisions for an affirmative defense to civil penalties for violations of emission standards in these rules that are caused by malfunctions. See 79 FR 1710-1713.
For the SSM provisions, we are still removing the SSM exemption and requiring that the existing standards apply at all times. In addition, we have added language to the AMF and PC MACT standards to clarify that excused excursions are not allowed. However, we are not finalizing the proposed affirmative defense provisions.
The following is a summary of the significant comments received on the proposed SSM provisions and our responses to these comments. The complete list of the comments received and our responses to those comments can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
One of the commenters notes that the definitions of “emission limitation” and “emission standard” have included provisions to limit “quantity, rate, or concentration of emissions of air pollutants on a continuous basis” since 1977, and since that time the EPA has not required sources to meet NSPS emission limits under CAA section 111 established for normal operations during SSM events. The commenter adds that Congress enacted the “continuous basis” language in section 302(k) knowing the EPA's emission standards under section 111 exempted SSM periods, and there is nothing in the
Response: The EPA does not claim that the
At proposal, we explained that the DC Court had recently vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 63.6(h)(1) that are part of the CAA section 112 General Provisions.
Further, in
The EPA disagrees with commenters' suggestion that the existence of an SSM exemption in rules implementing CAA section 111 in 1977 when Congress enacted the “continuous basis” language in the definition of “emission standard” is evidence that Congress approved of that regulatory SSM exemption. Commenters fail to cite legislative history or any other evidence supporting that Congress was aware or approved of that exemption and the
The EPA has determined not to finalize the proposed regulatory affirmative defense provisions due to a recent ruling by the United States Court of Appeals for the District of Columbia Circuit, which vacated an affirmative defense in one of the EPA's Section 112(d) regulations.
The EPA has also clarified in the AMF and PC MACT standards that the excused excursion provisions referenced in 40 CFR part 63, subpart SS do not apply. An excursion occurs when the value for a monitored parameter falls outside the established range for that parameter. The provisions of subpart SS allow for each control device or recovery device to have one excursion for each semiannual period excused. The excused excursions were originally put in place to account for unanticipated operating parameter fluctuations. In keeping with the
For all three source categories, we proposed that a pressure release of HAP emissions from a PRD in organic HAP service, unless routed to a control device or process, would be a violation. We also proposed to require that sources monitor PRDs in organic HAP service using a device or system that is capable of identifying and recording the time and duration of each pressure release and of notifying operators that a release has occurred, unless routed to a control device, process, fuel gas system or drain system. See 79 FR 1713-1714.
We have clarified that a pressure release of HAP emissions to the atmosphere from a PRD in organic HAP service is prohibited, unless the PRD is designed and operated to route all pressure releases to a control device, process, fuel gas system or drain system. We also made other minor technical corrections, such as clarifying that the delay of repair provisions for PRDs after pressure releases still apply, and exempting PRDs that route to a fuel gas system or drain system from the PRD monitoring requirements and pressure release prohibition, similar to the provisions previously contained in subpart UU.
The following is a summary of the significant comments received on the proposed PRD requirements and our responses to these comments. The complete list of the comments received and our responses to those comments can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
The commenters are correct in that there already exists an equipment leak standard for PRDs after a pressure release event, but there previously existed no provision that prevented a facility from a having such a pressure release to the atmosphere, nor was there a provision in place addressing these malfunction-related periods other than immediately after a pressure release event. The commenter is correct that there was previously no applicable emission limit in place for malfunction-caused emissions to the atmosphere from PRDs. As stated above, however, this does not allow the EPA to permit such malfunction emissions to remain unaddressed by the final rules. We also disagree with the commenter that the EPA is not authorized to monitor for emissions caused by such malfunctions, as there is nothing in the CAA that prohibits the agency from doing so. The EPA's authority under CAA section 114(a)(1) to require monitoring of emissions is not limited to the purpose of determining whether such emissions meet numeric emissions limits or work-practice standards.
As noted in a report prepared by the South Coast Air Quality Management District (SCAQMD), releases from PRDs occur randomly and the emissions can only be approximated. Based on their analysis of refinery PRD reports of PRD releases from nine facilities in their district, there were eight PRD releases from 2003 to 2006 that were estimated to release greater than 2,000 lbs of emissions to the atmosphere, and eight PRD releases from 2003 to 2006 that were estimated to release between 500 and 2,000 lbs of emissions to the atmosphere.
An agency generally remains free to revise previously promulgated rules to correct newly identified problems, even in the absence of a remand from a court.
The final rule includes detection and pressure release management requirements that can be used by facilities to mitigate emissions during pressure release events from PRDs while allowing owners or operators flexibility based on their current equipment and operations. The final rule requires that sources monitor PRDs that release to the atmosphere using a system that is capable of identifying and recording the time and duration of each pressure release and of immediately notifying operators that a release is occurring.
In the proposal, we proposed to eliminate the SSM exemption from the standards. As part of removing this exemption, we stated that under the proposed revised rule releases to the atmosphere from PRDs would constitute violations of the revised rule. However, although we proposed revised regulatory text to add PRD monitoring requirements and eliminate the SSM exemptions from the rules, we omitted a proposed regulatory provision that would have given effect to the proposed intended prohibition of such PRD releases to the atmosphere. In order to give effect to the proposed prohibition, which we are finalizing in this action, we are adding express regulatory language in the final rule revisions that clarifies our intent that pressure releases from PRDs in organic HAP service to the atmosphere are prohibited. This is a necessary additional revision to give full effect to our elimination of the general exemption for malfunctions, in light of the Court's reasoning in
For all three source categories, we proposed to add a definition of “seal,” which clarified that, for the purpose of complying with the requirements of 40 CFR 63.1033(b) of subpart UU, open-ended valves and lines are “sealed” by the cap, blind flange, plug or second valve when there are no detectable emissions from the open-ended valve or line at or above an instrument reading of 500 ppm. See 79 FR 1715.
For the definition of “seal”, we have added provisions that clarify that the revised definition does not take effect until the effective date of the final rule.
The following is a summary of the significant comments received on the proposed definition of “seal” and our responses to these comments. The complete list of the comments received and our responses to those comments can be found in the comment summary and response document available in the docket for this action (EPA-HQ-OAR-2012-0133).
In contrast, another commenter states that the EPA's proposed definition for a “seal” is actually a new loophole that would exempt leaks from open-ended valves or lines below 500 ppm from the standards. The commenter contends this definition is another type of exemption similar to the SSM exemption the United States Court of Appeals for the District of Columbia Circuit found unlawful, and the EPA should not finalize the definition as proposed.
The EPA also disagrees with the commenter that adding a definition of “seal” creates a new loophole for open-ended lines. As discussed in the preamble to the proposed rule and elsewhere in this preamble, this revision clarifies an existing requirement that open-ended lines be sealed with no detectable emissions, which is defined to be 500 ppm.
In the proposal, we proposed a definition of “seal” that clarified what constituted a sealed open-ended line. However, we did not include an effective date for this revised definition. In order to address concerns about potential retroactive compliance issues, we have added language to the final definition that clarifies that the definition of “seal” does not take effect until the effective date of the final rule.
We anticipate that each facility in these three source categories will be affected by these final amendments. We estimate there is one existing facility subject to the AMF MACT standards, 19 existing facilities subject to the APR MACT standards and four existing facilities subject to the PC MACT standards. We do not know of any new facilities that are expected to be constructed in the foreseeable future in any of these source categories. Therefore, our impact analysis is focused on the existing sources affected by the revised MACT standards for these three source categories.
For equipment leaks, we are eliminating the option of complying with 40 CFR part 63, subpart TT and requiring facilities to comply with only 40 CFR part 63, subpart UU, except for connectors in gas and vapor service and in light liquid service. We are retaining the option to comply with subpart TT or subpart UU for these components. We estimate the HAP emission reductions for the one facility in the AMF source category to be 0.2 tpy.
We are finalizing an emission rate for spinning lines that use spin dope produced from a solution polymerization process equal to the MACT floor for this facility, which will not result in any quantifiable emission reductions.
For the revisions to the MACT standards regarding SSM, including monitoring of PRDs in organic HAP service, we expect that these changes will result in fewer emissions during these periods or less frequent periods of startup, shutdown or malfunction, but these possible emission reductions are difficult to quantify and are not included in our assessment of air quality impacts.
Therefore, the total HAP emission reductions for the final standards for the AMF source category are 0.2 tpy.
Four facilities in the APR source category have uncontrolled continuous process vents. We are finalizing standards that establish an emission limit of 0.95 kg organic HAP/Mg (1.9 lb organic HAP/ton) of resin produced, which represents the MACT floor level of control. The estimated HAP emission reductions for these four facilities are 135 tpy.
We are establishing emission standards for storage vessels at existing facilities. However, our data indicate that all storage vessels subject to the final standards are already in compliance, and no quantifiable emission reductions are expected.
For the revisions to the MACT standards regarding SSM, including monitoring of PRDs in organic HAP service, we expect that these changes will result in fewer emissions during these periods or less frequent periods of startup, shutdown or malfunction, but these possible emission reductions are difficult to quantify and are not included in our assessment of air quality impacts.
Therefore, the total HAP emission reductions for the final standards for the APR source category are 135 tpy.
For equipment leaks, we are eliminating the option of complying with 40 CFR part 63, subpart TT and requiring facilities to comply with only 40 CFR part 63, subpart UU, except for connectors in gas and vapor service and in light liquid service. We are retaining the option to comply with subpart TT or subpart UU for these components. We estimate the HAP emission reductions for the four facilities in the PC source category to be 2.1 tpy.
For the revisions to the MACT standards regarding SSM, including installation and operation of monitors on PRDs, we expect that these changes will result in fewer emissions during these periods or less frequent periods of startup, shutdown or malfunction, but these possible emission reductions are difficult to quantify and are not included in our assessment of air quality impacts.
Therefore, the total HAP emission reductions for the final standards for the PC source category are 2.1 tpy.
Though the cost savings cannot be monetized, consistent with Executive Order 13563, “Improving Regulation and Regulatory Review,” issued on January 18, 2011, the electronic reporting requirements being finalized
For equipment leaks, we are eliminating the option of complying with 40 CFR part 63, subpart TT and requiring facilities to comply with only 40 CFR part 63, subpart UU, except for connectors in gas and vapor service and in light liquid service. We are retaining the option to comply with subpart TT or subpart UU for these components. We estimate the capital costs for the one facility in the AMF source category to be $1,400 and the annualized costs to be $220.
We are finalizing an emission rate for spinning lines that use spin dope produced from a solution polymerization process equal to the MACT floor for this facility. Thus, we do not expect any quantifiable capital or annual costs for the final standard.
For the requirement to install and operate monitors on PRDs, we estimate the capital costs to be $37,000 and the annualized costs to be $5,300.
Therefore, the total capital costs for the AMF source category are approximately $38,000, and the total annualized costs are approximately $6,000.
Four facilities in the APR source category have uncontrolled continuous process vents. We are finalizing standards that establish an emission limit of 0.95 kg organic HAP/Mg (1.9 lb organic HAP/ton) of resin produced for continuous process vents. The estimated capital costs for these four facilities are $3.6 million and the annualized costs are $860,000.
We are establishing emission standards for storage vessels at existing facilities. However, our data indicate that all storage vessels subject to the final standards are already in compliance, and no capital or annual costs are expected.
For the requirement to install and operate monitors on PRDs, we estimate the capital costs to be $400,000 and the annualized costs to be $60,000.
Therefore, the total capital costs for the APR source category are approximately $4.0 million, and the total annualized costs are approximately $920,000.
For equipment leaks, we are eliminating the option of complying with 40 CFR part 63, subpart TT and requiring facilities to comply with only 40 CFR part 63, subpart UU, except for connectors in gas and vapor service and in light liquid service. We are retaining the option to comply with subpart TT or subpart UU for these components. We estimated the capital costs to be $16,000 and the annualized costs to be $2,200.
For the requirement to install and operate monitors on PRDs, we estimate the capital costs to be $51,000 and the annualized costs to be $7,200.
Therefore, the total capital costs for the PC source category are approximately $67,000, and the total annualized costs are approximately $9,400.
We estimate that there will be no more than a 0.5 percent price change and a similar reduction in output associated with the final amendments. This is based on the costs of the rules and responsiveness of producers and consumers based on supply and demand elasticities for the industries affected by this final rule. The impacts to affected firms will be low because the annual compliance costs are quite small when compared to the annual revenues for the affected parent firms (much less than 1 percent for each). The impacts to affected consumers should also be quite small. Thus, there will not be any significant impacts on affected firms and their consumers as a result of this final rule.
Because this rulemaking is not likely to have an annual effect on the economy of $100 million or more, we have not conducted a regulatory impact analysis or a benefits analysis. However, the estimated reductions in HAP emissions that will be achieved by this final rule will provide benefits to public health. The final standards will result in significant reductions in the actual and allowable emissions of HAP and will reduce the actual and potential cancer risks and non-cancer health effects due to emissions of HAP from these source categories. Regarding SSM and PRDs, these changes will result in fewer emissions during SSM periods and PRD releases or less frequent SSM periods or PRD releases. However, the emission reductions, while tangible, are difficult to quantify and are not included in our assessment of health benefits. We have not quantified the monetary benefits associated with these reductions.
To examine the potential for any environmental justice (EJ) issues that might be associated with the AMF source category, we performed a demographic analysis of the population close to the one AMF facility. In this analysis, we evaluated the distribution of HAP-related cancer and non-cancer risks from the AMF source category across different social, demographic and economic groups within the populations living near facilities identified as having the highest risks. The results of the risk assessment for the AMF source category have not changed since proposal, and we did not conduct a new demographics analysis. Therefore the results of our original demographics analysis have not changed since proposal. The full results of the demographic analysis are summarized in the preamble to the proposed rule (79 FR 1699), and the methodology and the results of the demographic analyses are included in a technical report,
To gain a better understanding of the source categories and near-source populations, prior to proposal, the EPA conducted a proximity analysis of the facilities in the APR source category to identify any overrepresentation of minority, low income or indigenous populations. As part of the risk modeling effort conducted after proposal to include the additional APR facility, to examine the potential for any EJ issues that might be associated with the APR source category, we performed a demographic analysis of the population close to the 19 APR facilities. In this analysis, we evaluated the distribution of HAP-related cancer and non-cancer risks from the APR source category across different social, demographic and economic groups within the populations living near facilities identified as having the highest risks. The methodology and the results of the demographic analyses are included in a technical report,
The results of the APR source category demographic analysis indicate that emissions from the APR source category expose approximately 15,000 people to a cancer risk at or above 1-in-1 million and zero people to a chronic non-cancer TOSHI greater than 1. The specific demographic results indicate that the percentage of the population potentially impacted by APR emissions is significantly greater than its corresponding national percentage for the minority population (77 percent for the source category compared to 28 percent nationwide) and for the African American population (71 percent for the source category compared to 13 percent nationwide). Furthermore, the population below the poverty level that is potentially impacted by APR emissions is twice its corresponding national percentage (27 percent for the source category compared to 14 percent nationwide). Other demographic groups with source category percentages greater than the corresponding national percentage include the population over 25 without a high school diploma (21 percent compared to 15 percent), the Native American population (1.7 percent compared to 1.1 percent), and the population younger than 18 years old (27 percent compared to 24 percent). All other demographic categories potentially impacted by APR emissions are less than or equal to the corresponding national percentage. However, as noted previously, risks from this source category were found to be acceptable for all populations. Additionally, the final changes to the APR MACT standards increase the level of environmental protection for all affected populations by reducing emissions from continuous process vents, reducing emissions during periods of SSM and having less frequent releases of organic HAP to the atmosphere from PRDs.
To determine whether or not to conduct a demographics analysis, we look at a combination of factors including the MIR, non-cancer TOSHI, population around the facilities in the source category, and other relevant factors. For the PC source category, our analyses showed that actual emissions from the PC source category result in no individuals being exposed to cancer risk greater than 1-in-1 million or a noncancer TOSHI greater than 1. Therefore, we did not conduct an assessment of risks to individual demographic groups for this rulemaking. However, we did conduct a proximity analysis, which identifies any overrepresentation of minority, low income or indigenous populations near facilities in the source category. The results of the risk assessment for the PC source category have not changed since proposal and we did not conduct a new proximity analysis. The results of this analysis are presented in the section of this preamble entitled “Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735,
The information collection requirements in the final rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501,
The OMB previously approved the information collection requirements contained in the existing regulations being amended with this final rule (i.e., 40 CFR part 63, subparts YY and OOO) under the provisions of the PRA, 44 U.S.C. 3501,
The information collection request (ICR) document prepared by the EPA for the amendments to the AMF MACT standards we are promulgating today has been assigned EPA ICR number 1871.08. Burden changes associated with these final amendments result from new recordkeeping and reporting requirements associated with requirements for spinning lines that use spin dope produced from a solution polymerization process and the PRD monitoring requirements for all facilities subject to the AMF MACT standards.
We estimate one regulated facility is currently subject to the AMF requirements in 40 CFR part 63, subpart YY. The annual monitoring, reporting and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the standards) for these amendments to subpart YY is estimated to be 82 labor hours at a cost of $4,500 per year. There is no estimated change in annual burden to the federal government for these amendments.
The ICR document prepared by the EPA for the amendments to the APR MACT standards we are promulgating today has been assigned EPA ICR number 1869.09. Burden changes associated with these final amendments result from new recordkeeping and reporting requirements associated with the PRD monitoring requirements for all facilities subject to the APR MACT standards. In addition, we estimate that 3 regulated facilities will be subject to recordkeeping, reporting and monitoring requirements associated with the new requirements that apply to continuous process vents at existing APR facilities.
We estimate 19 regulated facilities are currently subject to 40 CFR part 63, subpart OOO. The annual monitoring, reporting and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the standards) for these amendments to subpart OOO is estimated to be 1,243 labor hours at a cost of $69,500 per year. There is no estimated change in annual burden to the federal government for these amendments.
The ICR document prepared by the EPA for the amendments to the PC MACT standards we are promulgating today has been assigned EPA ICR number 1871.08. Burden changes associated with these final amendments result from new recordkeeping and reporting requirements associated with the PRD monitoring requirements for all facilities subject to the MACT standards.
We estimate four regulated facilities are currently subject to the PC requirements in 40 CFR part 63, subpart YY. The annual monitoring, reporting and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the standards) for these amendments to subpart YY is estimated to be 216 labor hours at a cost of $12,000 per year. There is no estimated change in annual burden to the federal government for these amendments.
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. When these ICR are approved by OMB, the agency will publish a technical amendment to 40 CFR part 9 in the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the RFA or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.
For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (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 that is independently owned and operated and is not dominant in its field. According to the SBA small business standards definitions, for the APR source category, which has the NAICS code of 325211 (i.e., Plastics Material and Resin Manufacturing), the SBA small business size standard is 750 employees. For the PC source category, which has the NAICS code of 325211 (i.e., Plastics Material and Resin Manufacturing), the SBA small business size standard is 750 employees. For the AMF source category, which has the NAICS code of 325222 (i.e., Noncellulosic Organic Fiber Manufacturing), the SBA small business size standard is 1,000 employees.
After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. There are no affected small businesses in the APR, AMF and PC source categories. All of the companies affected by this rule are generally large integrated corporations that are not considered to be small entities per the definitions provided in this section.
Although this final rule will not have a significant economic impact on a substantial number of small entities, the EPA nonetheless has tried to reduce the impact of this rule on small entities that could potentially be impacted by this rule in the future. The final requirements for PRD monitoring provide facilities with greater flexibility based on their current equipment and operations.
This rule does not contain a federal mandate that may result in expenditures of $100 million or more for state, local or tribal governments, in the aggregate, or the private sector in any one year. The total annualized cost of this rule is estimated to be no more than $1,050,000 in any one year. Thus, this rule is not subject to the requirements of sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA).
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The rule contains no requirements that apply to such governments nor does it impose obligations upon them.
This final rule 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. None of the affected facilities are owned or operated by state governments, and the requirements discussed in this document will not supersede state regulations that are more stringent. 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). It will not have substantial direct effect on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. Although Executive Order 13175 does not apply to this action, the EPA solicited comments on this action from tribal officials, but received none.
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action increases the level of environmental protection for all affected populations and would not cause increases in emissions or emissions-related health risks. The EPA's risk assessments (included in the docket for this final rule) demonstrate that the existing regulations are associated with an acceptable level of risk and provide an ample margin of safety to protect public health and prevent adverse environmental effects.
This action is not subject to Executive Order 13211, (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the 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 VCS bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable VCS.
This action does not involve new technical standards. Therefore, the EPA did not consider the use of any VCS.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.
The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority, low income or indigenous 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, low income or indigenous populations. The EPA has determined that the current health risks posed by emissions from these source categories are acceptable and provide an ample margin of safety to protect public health and prevent adverse environmental effects.
To gain a better understanding of the source categories and near source populations, the EPA conducted a proximity analysis of the facilities in the AMF, APR and PC source categories to identify any overrepresentation of minority, low income or indigenous populations. This analysis only gives some indication of the prevalence of sub-populations that may be exposed to air pollution from the sources; it does not identify the demographic characteristics of the most highly affected individuals or communities, nor does it quantify the level of risk faced by those individuals or communities. The complete proximity analysis results and the details concerning their development are presented in the memorandum titled,
The Congressional Review Act, U.S.C. 801,
Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Environmental Protection Agency (EPA) is amending Title 40, chapter I, of the Code of Federal Regulations (CFR) as follows:
42 U.S.C. 7401
(d) * * * Paragraphs (d)(3), (4), and (5) of this section discuss compliance for those process units operated as flexible operation units.
(a) * * * Affected sources, as defined in § 63.1103(a)(1)(i) for acetyl resins production, § 63.1103(b)(1)(i) for acrylic and modacrylic fiber production, § 63.1103(c)(1)(i) for hydrogen fluoride production, § 63.1103(d)(1)(i) for polycarbonate production, § 63.1103(e)(1)(i) for ethylene production, § 63.1103(f)(1)(i) for carbon black production, § 63.1103(g)(1)(i) for cyanide chemicals manufacturing, or § 63.1103(h)(1)(i) for spandex production shall comply with the appropriate provisions of this subpart and the subparts referenced by this subpart according to the schedule in paragraphs (a)(1) or (2) of this section, as appropriate, except as provided in paragraph (b) of this section. * * *
(b) All acrylic and modacrylic fiber production affected sources and polycarbonate production affected sources that commenced construction or reconstruction on or before January 9, 2014, shall be in compliance with the pressure relief device monitoring requirements of § 63.1107(e)(3) upon initial startup or October 9, 2017, whichever is later, and the equipment leaks requirements of 40 CFR part 63, subpart UU upon initial startup or October 8, 2015, whichever is later. New acrylic and modacrylic fiber production affected sources and polycarbonate production affected sources that commence construction or reconstruction after January 9, 2014, shall be in compliance with the pressure relief device monitoring requirements of § 63.1107(e)(3) upon initial startup or by October 8, 2014, whichever is later.
The revisions and additions read as follows:
(b) * * *
(1) * * *
(ii)
(2)
(3) * * *
(i) * * *
(ii) * * * The owner or operator must determine the facility organic HAP emission rate using the procedures specified in paragraph (b)(5) of this section. * * *
(5)
(i) The owner or operator must prepare an initial determination of the facility organic HAP emission rate.
(ii) Whenever changes to the acrylic or modacrylic fiber production operations at the facility could potentially cause the facility organic HAP emission rate to exceed the applicable limit of kilogram of organic HAP per Megagram of fiber produced, the owner or operator must prepare a new determination of the facility organic HAP emission rate.
(iii) For each determination, the owner or operator must prepare and maintain at the facility site sufficient process data, emissions data, and any other documentation necessary to support the facility organic HAP emission rate calculation.
(d) * * *
(1) * * *
(ii)
(2)
(3) * * *
(c)
(a) * * *
(11) Where § 63.152(b) and/or the Notification of Compliance Status is referred to in §§ 63.132 through 63.148, the Notification of Compliance Status requirements contained in § 63.1110(a)(4) shall apply, for purposes of this subpart.
(12) Where § 63.152(c) and/or the Periodic Report requirements are referred to §§ 63.132 through 63.148, the Periodic Report requirements contained in § 63.1110(a)(5) shall apply, for purposes of this subpart.
(13) When Method 18 of Appendix A to part 60 of this chapter is specified in § 63.139(c)(1)(ii), § 63.145(d)(4), or § 63.145(i)(2), either Method 18 or Method 25A may be used. * * *
(c) * * *
(6) When Table 35 of subpart G of this part refers to 40 CFR 63.119(e)(1) or (e)(2) in the requirements for tanks, the owner or operator shall reduce emissions of total organic HAP by 95 weight-percent by venting emissions through a closed vent system to any combination of control devices meeting the requirements in § 63.982(a)(1), for the purposes of this subpart.
(e)
(1)
(2)
(i) If the pressure relief device does not consist of or include a rupture disk, conduct instrument monitoring, as described in Method 21 of 40 CFR part 60, Appendix A, no later than 5 calendar days after the pressure relief device returns to organic HAP service following a pressure release to verify that the pressure relief device is operating with an instrument reading of less than 500 ppm above background, except as provided in § 63.171 or § 63.1024(d), as applicable.
(ii) If the pressure relief device consists of or includes a rupture disk, install a replacement disk as soon as practicable after a pressure release, but no later than 5 calendar days after the pressure release, except as provided in § 63.171 or § 63.1024(d), as applicable.
(3)
(i) The owner or operator must equip each pressure relief device in organic HAP service with a device(s) or parameter monitoring system that is capable of:
(A) Identifying the pressure release;
(B) Recording the time and duration of each pressure release; and
(C) Notifying operators immediately that a pressure release is occurring. The device or monitoring system may be either specific to the pressure relief device itself or may be associated with the process system or piping, sufficient to indicate a pressure release to the atmosphere. Examples of these types of devices and systems include, but are not limited to, a rupture disk indicator, magnetic sensor, motion detector on the pressure relief valve stem, flow monitor, or pressure monitor.
(ii) If any pressure relief device in organic HAP service releases to atmosphere as a result of a pressure release event, the owner or operator must calculate the quantity of organic HAP released during each pressure release event and report this quantity as required in paragraph (g) of this section. Calculations may be based on data from the pressure relief device monitoring alone or in combination with process parameter monitoring data and process knowledge.
(4)
(f)
(1) A list of identification numbers for pressure relief devices that vent to a fuel gas system, process, drain system, or closed-vent system and control device, under the provisions in paragraph (e)(4) of this section.
(2) A list of identification numbers for pressure relief devices subject to the provisions in paragraph (e)(1) of this section.
(3) A list of identification numbers for pressure relief devices equipped with rupture disks, under the provisions in paragraph (e)(2)(ii) of this section.
(4) The dates and results of the monitoring following a pressure release for each pressure relief device subject to the provisions in paragraphs (e)(1) and (2) of this section. The results shall include:
(i) The background level measured during each compliance test.
(ii) The maximum instrument reading measured at each piece of equipment during each compliance test.
(5) For pressure relief devices in organic HAP service subject to paragraph (e)(3) of this section, keep records of each pressure release to the atmosphere, including the following information:
(i) The source, nature, and cause of the pressure release.
(ii) The date, time, and duration of the pressure release.
(iii) An estimate of the quantity of total HAP emitted during the pressure release and the calculations used for determining this quantity.
(iv) The actions taken to prevent this pressure release.
(v) The measures adopted to prevent future such pressure releases.
(g)
(1) For pressure relief devices in organic HAP service subject to paragraph (e) of this section, report confirmation that all monitoring to show compliance was conducted within the reporting period.
(2) For pressure relief devices in organic HAP gas or vapor service subject to paragraph (e)(2) of this section, report any instrument reading of 500 ppm above background or greater, more than 5 days after the relief device returns to organic HAP gas or vapor service after a pressure release.
(3) For pressure relief devices in organic HAP service subject to paragraph (e)(3) of this section, report each pressure release to the atmosphere, including the following information:
(i) The source, nature, and cause of the pressure release.
(ii) The date, time, and duration of the pressure release.
(iii) An estimate of the quantity of total HAP emitted during the pressure release and the method used for determining this quantity.
(iv) The actions taken to prevent this pressure release.
(v) The measures adopted to prevent future such pressure releases.
The revisions and additions read as follows:
(a)
(4)(i) For acrylic and modacrylic fiber production affected sources and polycarbonate production affected sources, the emission limitations and established parameter ranges of this part shall apply at all times except during periods of non-operation of the affected source (or specific portion thereof) resulting in cessation of the emissions to which this subpart applies. Equipment leak requirements shall apply at all times except during periods of non-operation of the affected source (or specific portion thereof) in which the lines are drained and depressurized resulting in cessation of the emissions to which the equipment leak requirements apply.
(ii)
(5) During startups, shutdowns, and malfunctions when the emission standards of this subpart and the subparts referenced by this subpart do not apply pursuant to paragraphs (a)(1) through (3) of this section, the owner or operator shall implement, to the extent reasonably available, measures to prevent or minimize excess emissions. * * *
(b) * * *
(1)
(i) An excursion that meets the requirements of paragraph (b)(2) of this section is not a violation.
(ii) Excused excursions are not allowed for acrylic and modacrylic fiber production affected sources or polycarbonate production affected sources. For all other affected sources, an excused excursion, as described in § 63.998(b)(6)(ii), is not a violation.
(2)
(4) * * *
(ii)
(B) For acrylic and modacrylic fiber production affected sources and polycarbonate production affected sources, performance tests shall be conducted under such conditions as the Administrator specifies to the owner or operator based on representative performance of the affected source for the period being tested. Representative conditions exclude periods of startup and shutdown unless specified by the Administrator or an applicable subpart. The owner or operator may not conduct performance tests during periods of malfunction. The owner or operator must record the process information that is necessary to document operating conditions during the test and include in such record an explanation to support that such conditions represent normal operation. Upon request, the owner or operator shall make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
The revisions and additions read as follows:
(a) * * * Each owner or operator of an acrylic and modacrylic fiber production affected source or polycarbonate production affected source subject to this subpart shall also submit the reports listed in paragraph (a)(9) of this section in addition to the reports listed in paragraphs (a)(1) through (8) of this section, as applicable.
(7) Startup, Shutdown, and Malfunction Reports described in § 63.1111 (except for acrylic and modacrylic fiber production affected sources and polycarbonate production affected sources).
(9)
(i) For data collected using test methods supported by the EPA-provided software, the owner or operator shall submit the results of the performance test to the EPA by direct computer-to-computer electronic transfer via EPA-provided software, unless otherwise approved by the Administrator. Owners or operators, who claim that some of the information being submitted for performance tests is confidential business information (CBI), must submit a complete file using EPA-provided software that includes information claimed to be CBI on a compact disc, flash drive, or other commonly used electronic storage media to the EPA. The electronic media must be clearly marked as CBI and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: WebFIRE Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same file with the CBI omitted must be submitted to the EPA by direct computer-to-computer electronic transfer via EPA-provided software.
(ii) For any performance test conducted using test methods that are not compatible with the EPA-provided
(d) * * *
(1) * * * For pressure relief devices subject to the requirements of § 63.1107(e)(3), the owner or operator of an acrylic and modacrylic fiber production affected source or polycarbonate production affected source shall also submit the information listed in paragraph (d)(1)(iii) of this section in a supplement to the Notification of Compliance Status within 150 days after the first applicable compliance date for pressure relief device monitoring.
(iii) For pressure relief devices in organic HAP service, a description of the device or monitoring system to be implemented, including the pressure relief devices and process parameters to be monitored (if applicable), and a description of the alarms or other methods by which operators will be notified of a pressure release.
The revisions and additions read as follows:
(a)
(b)
(c)
(1)
(i) In the event that an affected unit fails to meet an applicable standard, record the number of failures. For each failure record the date, time, and duration of each failure.
(ii) For each failure to meet an applicable standard, record and retain a list of the affected sources or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit, and a description of the method used to estimate the emissions.
(iii) Record actions taken to minimize emissions in accordance with § 63.1108(a)(4)(ii), and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(2)
(k)
(2) The emission limitations set forth in 40 CFR part 63, subpart UU, as referred to in § 63.1410, shall apply at all times except during periods of non-operation of the affected source (or specific portion thereof) in which the lines are drained and depressurized resulting in cessation of the emissions to which § 63.1410 applies.
(3) The owner or operator shall not shut down items of equipment that are required or utilized for compliance with this subpart during times when emissions are being routed to such items of equipment if the shutdown would contravene requirements of this subpart applicable to such items of equipment.
(4)
(a) New affected sources that commence construction or reconstruction after December 14, 1998, shall be in compliance with this subpart (except § 63.1411(c)) upon initial start-up or January 20, 2000, whichever is later. New affected sources that commenced construction or reconstruction after December 14, 1998, but on or before January 9, 2014, shall be in compliance with the pressure relief device monitoring requirements of § 63.1411(c) by October 9, 2017. New affected sources that commence construction or reconstruction after January 9, 2014, shall be in compliance with the pressure relief device monitoring requirements of § 63.1411(c) upon initial startup or by October 8, 2014.
(b) Existing affected sources shall be in compliance with this subpart (except §§ 63.1404, 63.1405, and 63.1411(c)) no later than 3 years after January 20, 2000. Existing affected sources shall be in compliance with the storage vessel requirements of § 63.1404, the continuous process vent requirements of § 63.1405, and the pressure relief device monitoring requirements of § 63.1411(c) by October 9, 2017.
The revisions and additions read as follows:
(b) * * *
(a)
The revisions and additions read as follows:
(a)
(3) Reduce emissions to less than or equal to 0.95 kg of total organic HAP per megagram (1.9 pounds of total organic HAP per ton) of resin produced, or to a concentration of 20 ppmv when using a combustion control device or to a concentration of 50 ppmv when using a non-combustion control device, whichever is less stringent.
(b)
The owner or operator of each affected source shall comply with the requirements of 40 CFR part 63, subpart UU for all equipment, as defined under § 63.1402, that contains or contacts 5 weight-percent HAP or greater and operates 300 hours per year or more, except § 63.1030. * * *
Except as specified in paragraph (d) of this section, the owner or operator must comply with the requirements specified in paragraphs (a) and (b) of this section for pressure relief devices in organic HAP gas or vapor service. Except as specified in paragraph (d) of this section, the owner or operator must also comply with the requirements specified in paragraph (c) of this section for all pressure relief devices in organic HAP service.
(a)
(b)
(1) If the pressure relief device does not consist of or include a rupture disk, conduct instrument monitoring, as described in Method 21 of 40 CFR part 60, Appendix A, no later than 5 calendar days after the pressure relief device returns to organic HAP service following a pressure release to verify that the pressure relief device is operating with an instrument reading of less than 500 ppm above background, except as provided in § 63.1024(d).
(2) If the pressure relief device consists of or includes a rupture disk, install a replacement disk as soon as practicable after a pressure release, but no later than 5 calendar days after the pressure release, except as provided in § 63.1024(d).
(c)
(1) The owner or operator must equip each pressure relief device in organic HAP service with a device(s) or parameter monitoring system that is capable of:
(i) Identifying the pressure release;
(ii) Recording the time and duration of each pressure release; and
(iii) Notifying operators immediately that a pressure release is occurring. The device or monitoring system may be either specific to the pressure relief device itself or may be associated with the process system or piping sufficient to indicate a pressure release to the atmosphere. Examples of these types of devices and systems include, but are not limited to, a rupture disk indicator, magnetic sensor, motion detector on the pressure relief valve stem, flow monitor, or pressure monitor.
(2) If any pressure relief device in organic HAP service releases to atmosphere as a result of a pressure release event, the owner or operator must calculate the quantity of organic HAP released during each pressure release event and report this quantity as required in § 63.1417(f)(13)(iii). Calculations may be based on data from the pressure relief device monitoring alone or in combination with process
(d)
(c)
The revisions and additions read as follows:
(a)* * *
(2)
(c) * * *
(5) Initial and continuous compliance with the emission limit specified in § 63.1405(a)(3) shall be demonstrated following the procedures in paragraph (h) of this section.
(h)
(i)
(ii)
(2)
(ii) The monthly emission rate of organic HAP, in kilograms per month, from an individual continuous process vent (E
(A) For continuous process vents estimated through engineering assessment, as described in § 63.1414(d)(10), to emit less than 10 tons per year of uncontrolled organic HAP emissions, the owner or operator may use the emissions determined using engineering assessment in Equation 5 of this section or may determine organic HAP emissions using the procedures specified in paragraph (a)(1)(i) of this section. For continuous process vents estimated through engineering assessment, as described in
(B) For continuous process vents vented to a control device or control technology, controlled organic HAP emissions shall be determined as follows:
(
(
(
(iii) The rate of resin produced, RP
(i)
(4)
(i) The period of control device or control technology operation is 4 hours or greater in an operating day, and monitoring data are insufficient to constitute a valid hour of data, as defined in paragraph (i)(4)(iii) of this section, for at least 75 percent of the operating hours;
(iii) Monitoring data are insufficient to constitute a valid hour of data, as used in paragraphs (i)(4)(i) and (ii) of this section, if measured values are unavailable for any of the 15-minute periods within the hour. * * *
(5)
(i) Monitoring data cannot be collected during monitoring device calibration check or monitoring device malfunction; or
(ii) Monitoring data are not collected during periods of nonoperation of the affected source or portion thereof (resulting in cessation of the emissions to which the monitoring applies).
(6)
(i) Monitoring system breakdowns, repairs, calibration checks, and zero (low-level) and high-level adjustments; or
(ii) Periods of nonoperation of the affected source (or portion thereof), resulting in cessation of the emissions to which the monitoring applies.
(d) * * *
(10) For continuous process vent emissions determined by engineering assessment, the engineering assessment includes, but is not limited to, the examples provided in § 63.1412(k)(3).
(b) * * *
(1) * * *
(ii) * * *
(C) * * * The plan shall require determination of gas stream flow by a method which will at least provide a value for either a representative or the highest gas stream flow anticipated in the scrubber during representative operating conditions other than malfunctions. * * *
The revisions and additions read as follows:
(b)
(1) In the event that an affected unit fails to meet an applicable standard, record the number of failures. For each failure record the date, time, and duration of each failure.
(2) For each failure to meet an applicable standard, record and retain a list of the affected sources or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit, and a description of the method used to estimate the emissions.
(3) Record actions taken to minimize emissions in accordance with § 63.1420(h)(4), and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(c) * * *
(4) Monitoring data recorded during periods identified in paragraphs (c)(4)(i) and (ii) of this section shall not be included in any average computed under this subpart. Records shall be kept of the times and durations of all such periods and any other periods during process or control device or recovery device or control technology operation when monitors are not operating:
(i) Monitoring system breakdowns, repairs, calibration checks, and zero (low-level) and high-level adjustments; and
(ii) Periods of non-operation of the affected source (or portion thereof) resulting in cessation of the emissions to which the monitoring applies.
(d) * * *
(3) * * *
(iv) * * *
(B) If there is a deviation from the mass emission limit, as specified in § 63.1413(i), the individual monthly emission rate data points making up the cumulative average monthly emission rate or the 12-month rolling average monthly emission rate, as appropriate.
(e) * * *
(3) * * *
(iv) * * *
(B) If there is a deviation from the emission limit, as specified in § 63.1413(i)(1), the individual monthly emission rate data points making up the rolling average monthly emission rate or the 12-month rolling average monthly emission rate, as appropriate.
(f) * * *
(5) If a continuous process vent is seeking to demonstrate compliance with the mass emission limit specified in § 63.1405(a)(3), keep records specified in paragraphs (f)(5)(i) and (ii) of this section.
(i) The results of the initial compliance demonstration specified in § 63.1413(h)(1)(i).
(ii) The monthly organic HAP emissions from the continuous process vent determined as specified in § 63.1413(h)(2).
(6) When using a flare to comply with § 63.1405(a), keep the records specified in paragraphs (f)(6)(i) through (f)(6)(iii) of this section.
(i) The flare design (i.e., steam-assisted, air-assisted or non-assisted);
(ii) All visible emission readings, heat content determinations, flow rate measurements, and exit velocity determinations made during the compliance determination required by § 63.1413(g); and
(iii) Periods when all pilot flames were absent during the compliance determination required by § 63.1413(g).
(g) * * *
(5) For pressure relief devices in organic HAP service, keep records of the information specified in paragraphs (g)(5)(i) through (v) of this section, as applicable.
(i) A list of identification numbers for pressure relief devices that vent to a fuel gas system, process, drain system, or closed-vent system and control device, under the provisions in § 63.1411(d).
(ii) A list of identification numbers for pressure relief devices subject to the provisions in § 63.1411(a).
(iii) A list of identification numbers for pressure relief devices equipped with rupture disks, under the provisions in § 63.1411(b)(2).
(iv) The dates and results of the monitoring following a pressure release for each pressure relief device subject to the provisions in § 63.1411(a) and (b). The results shall include:
(A) The background level measured during each compliance test.
(B) The maximum instrument reading measured at each piece of equipment during each compliance test.
(v) For pressure relief devices in organic HAP service subject to § 63.1411(c), keep records of each pressure release to the atmosphere, including the following information:
(A) The source, nature, and cause of the pressure release.
(B) The date, time, and duration of the pressure release.
(C) An estimate of the quantity of total HAP emitted during the pressure release and the calculations used for determining this quantity.
(D) The actions taken to prevent this pressure release.
(E) The measures adopted to prevent future such pressure releases.
(h) * * *
(1) * * *
(i) The monitoring system is capable of detecting unrealistic or impossible data during periods of operation (e.g., a temperature reading of −200 °C on a boiler) and will alert the operator by alarm or other means. * * *
(ii) The monitoring system generates, updated at least hourly throughout each operating day, a running average of the parameter values that have been obtained during that operating day or block, and the capability to observe this running average is readily available on-site to the Administrator during the operating day. The owner or operator shall record the occurrence of any period meeting the criteria in paragraphs (h)(1)(ii)(A) and (B) of this section. All instances in an operating day or block constitute a single occurrence:
(A) The running average is above the maximum or below the minimum established limits; and
(B) The running average is based on at least six 1-hour average values.
(iii) The monitoring system is capable of detecting unchanging data during periods of operation, except in circumstances where the presence of unchanging data is the expected operating condition based on past experience (e.g., pH in some scrubbers) and will alert the operator by alarm or other means. * * *
(2) * * *
(iii) * * * For any calendar week, if compliance with paragraphs (h)(1)(i) through (iv) of this section does not result in retention of a record of at least one occurrence or measured parameter value, the owner or operator shall record and retain at least one value during a period of operation.
(iv) For purposes of paragraph (h)(2) of this section, a deviation means that the daily average, batch cycle daily average, or block average value of monitoring data for a parameter is greater than the maximum, or less than the minimum established value.
The revisions and additions read as follows:
(d)
(8) If an owner or operator is complying with the mass emission limit specified in § 63.1405(a)(3), the sample of production records specified in § 63.1413(h)(2) shall be submitted in the Precompliance Report.
(9) If an owner or operator is complying with the mass emission limit specified in § 63.1406(a)(1)(iii) or (a)(2)(iii), § 63.1407(b)(2), or § 63.1408(b)(2), the sample of production records specified in § 63.1413(e)(2) shall be submitted in the Precompliance Report.
(11) * * *
(ii) Supplements to the Precompliance Report may be submitted to request
(e)
(10) For pressure relief devices in organic HAP service, a description of the device or monitoring system to be implemented, including the pressure relief devices and process parameters to be monitored (if applicable), and a description of the alarms or other methods by which operators will be notified of a pressure release.
(f) * * *
(1) Except as specified in paragraph (f)(12) of this section, a report containing the information in paragraph (f)(2) of this section or containing the information in paragraphs (f)(3) through (11) and (13) of this section, as appropriate, shall be submitted semiannually no later than 60 days after the end of each 180 day period. * * *
(3) * * *
(i) All information specified in 40 CFR part 63, subpart WW and subpart SS for storage vessels; 40 CFR part 63, subpart SS for continuous process vents required to comply with subpart SS; § 63.1416(d)(3)(ii) for batch process vents; and § 63.1416(e) for aggregate batch vent stream.
(ii) The daily average values, batch cycle daily average values, or block average values of monitored parameters for deviations, as specified in § 63.1413(i), of operating parameters. In addition, the periods and duration of periods when monitoring data were not collected shall be specified.
(5) If there is a deviation from the mass emission limit specified in § 63.1405(a)(3), § 63.1406(a)(1)(iii) or (a)(2)(iii), § 63.1407(b)(2), or § 63.1408(b)(2), the following information, as appropriate, shall be included:
(13) For pressure relief devices, Periodic Reports must include the information specified in paragraphs (f)(13)(i) through (iii) of this section.
(i) For pressure relief devices in organic HAP service subject to § 63.1411, report confirmation that all monitoring to show compliance was conducted within the reporting period.
(ii) For pressure relief devices in organic HAP gas or vapor service subject to § 63.1411(b), report any instrument reading of 500 ppm above background or greater, more than 5 days after the relief device returns to organic HAP gas or vapor service after a pressure release.
(iii) For pressure relief devices in organic HAP service subject to § 63.1411(c), report each pressure release to the atmosphere, including the following information:
(A) The source, nature, and cause of the pressure release.
(B) The date, time, and duration of the pressure release.
(C) An estimate of the quantity of total HAP emitted during the pressure release and the method used for determining this quantity.
(D) The actions taken to prevent this pressure release.
(E) The measures adopted to prevent future such pressure releases.
(g)
(h)
(7) Whenever a continuous process vent becomes subject to control requirements under § 63.1405(a), as a result of a process change, the owner or operator shall submit a report within 60 days after the performance test or applicability assessment, whichever is sooner. * * *
(8)
(i) For data collected using test methods supported by the EPA-provided software, the owner or operator shall submit the results of the performance test to the EPA by direct computer-to-computer electronic transfer via EPA-provided software, unless otherwise approved by the Administrator. Owners or operators, who claim that some of the information being submitted for performance tests is confidential business information (CBI), must submit a complete file using EPA-provided software that includes information claimed to be CBI on a compact disc, flash drive, or other commonly used electronic storage media to the EPA. The electronic media must be clearly marked as CBI and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: WebFIRE Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same file with the CBI omitted must be submitted to the EPA by direct computer-to-computer electronic transfer via EPA-provided software.
(ii) For any performance test conducted using test methods that are not compatible with the EPA-provided software, the owner or operator shall submit the results of the performance test to the Administrator at the appropriate address listed in § 60.4.
(k) * * *
(3) * * *
(i) * * *
(F) If the daily average is not a deviation, as defined in § 63.1413(i), from the operating parameter, the data for that operating day may be converted to hourly average values, and the four or more individual records for each hour in the operating day may be discarded.
The revisions and additions read as follows:
(1) The designation of Russia as a beneficiary developing country is terminated, effective on October 3, 2014.
(2) In order to reflect the termination of Russia's designation as a beneficiary developing country, general notes 4(a) and 4(d) and pertinent subheadings of the HTS are modified as set forth in the Annex to this proclamation.
(3) Any provisions of previous proclamations and Executive Orders that are inconsistent with the actions taken in this proclamation are superseded to the extent of such inconsistency.
(b) 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.