Agricultural Marketing Service
Food Safety and Inspection Service
Forest Service
Rural Utilities Service
Engineers Corps
National Foundation on the Arts and the Humanities
Committee for Purchase From People Who Are Blind or Severely Disabled
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Engineers Corps
Energy Efficiency and Renewable Energy Office
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
Reclamation Bureau
Justice Programs Office
Prisons Bureau
Employment and Training Administration
Mine Safety and Health Administration
Federal Highway Administration
Federal Transit Administration
Alcohol and Tobacco Tax and Trade Bureau
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Office of the General Counsel, National Endowment for the Arts, Arts.
Final rule.
The National Endowment for the Arts (NEA) implements Office of Management and Budget (OMB) guidance on nonprocurement suspension and debarment, issued on August 31, 2005 [70 FR 51863], by adopting the guidelines in a new part in title 2 of the CFR, the Government-wide title recently established for OMB guidance on grants and agreements, and removing 45 CFR part 1154, the part containing the NEA implementation of the government-wide common rule on nonprocurement debarment and suspension. This regulatory action would make no substantive change in NEA policy or procedures for nonprocurement debarment and suspension.
National Endowment for the Arts, ATTN: Federal Register, 1100 Pennsylvania Avenue, NW., Room 518, Washington, DC 20506; or Laura Nelson, (202) 682-5595.
This final rule implements the OMB guidance and does not make any changes in current policies and procedures.
This rule is not significant because the replacement of the common rule with OMB guidance and a brief NEA adopting regulation does not make any changes in current polices and procedures.
This regulatory action will not have a significant adverse impact on a substantial number of small entities.
This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.
This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.
This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. 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.
Administrative practice and procedure, Debarment and suspension, Grant programs, Reporting and recordkeeping requirements.
Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.
This part adopts the Office of Management and Budget (OMB) guidance in Subparts A through I of 2 CFR part 180, as supplemented by this part, as the National Endowment for the Arts (NEA) policies and procedures for nonprocurement debarment and suspension. It thereby gives regulatory effect for the NEA to the OMB guidance as supplemented by this part. This part satisfies the requirements in section 3 of Executive Order 12549, “Debarment and Suspension” (3 CFR 1986 Comp., p. 189), Executive Order 12689, “Debarment and Suspension” (3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327).
This part and, through this part, pertinent portions of the OMB guidance in Subparts A through I of 2 CFR part 180 (see table at 2 CFR 180.100(b)) apply to you if you are a—
(a) Participant or principal in a “covered transaction” (see Subpart B of 2 CFR part 180 and the definition of “nonprocurement transaction” at 2 CFR 180.970.
(b) Respondent in a NEA suspension or debarment action.
(c) NEA debarment or suspension official;
(d) NEA grants officer, agreements officer, or other official authorized to enter into any type of nonprocurement transaction that is a covered transaction;
The NEA policies and procedures that you must follow are the policies and procedures specified in each applicable section of the OMB guidance in Subparts A through I of 2 CFR part 180, as that section is supplemented by the section in this part with the same section number. The contracts that are covered transactions, for example, are specified by section 220 of the OMB guidance (i.e., 2 CFR 180.220) as supplemented by section 220 in this part (i.e., § 3254.220). For any section of OMB guidance in Subparts A through I of 2 CFR 180 that has no corresponding section in this part, NEA policies and procedures are those in the OMB guidance.
The NEA Chairman has the authority to grant an exception to let an excluded person participate in a covered transaction, as provided in the OMB guidance at 2 CFR 180.135.
Although the OMB guidance at 2 CFR 180.220(c) allows a Federal agency to do so (also see options lower tier coverage in the figure in the Appendix to 2 CFR part 180), NEA does not extend coverage of nonprocurement suspension and debarment requirements beyond first-tier procurement contracts under a covered nonprocurement transaction.
You as a participant must include a term or condition in lower-tier transactions requiring lower-tier participants to comply with Subpart C of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.
To communicate to a participant the requirements described in 2 CFR 180.435 of the OMB guidance, you must include a term or condition in the transaction that requires the participant's compliance with subpart C of 2 CFR part 180, as supplemented by Subpart C of this part, and requires the participant to include a similar term or condition in lower-tier covered transactions.
Office of Personnel Management.
Final rule, Technical Amendment.
The Office of Personnel Management (OPM) is making a technical amendment to the final regulations concerning the Combined Federal Campaign (CFC). This technical amendment corrects the final rule issued on November 20, 2006 by re-inserting text that was erroneously removed.
Mark W. Lambert by telephone at (202) 606-2564; by FAX at (202) 606-5056; or by e-mail at
This technical amendment is effective on February 9, 2007.
In the final regulations issued on November 20, 2006, OPM erroneously removed regulatory text in 5 CFR 950.203(a)(1) that had required a charitable organization applying to participate in the CFC to provide, in addition to its certification, “documentation describing the health and human welfare benefits provided by the organization within the previous year.” Although OPM has changed the manner in which it collects this documentation (as of 2007, it is included on the “Statement of Services” Attachment A to the application whereas in previous years it was a separate attachment to the application), OPM did not intend to remove the regulatory provision. As stated in the Supplementary Information to both the Proposed Rule, 71 FR 37003 (June 29, 2006) and the Final Rule, “no changes were proposed to this standard and it remains the same as the existing regulation.” 71 FR 67276, 67277 (November 20, 2006). The denotation “(a) * * *” regarding regulatory changes under section 950.203 Public Accountability Standards, similarly indicates OPM's intention to retain the provision at 5 CFR 950.203(a)(1) as it had previously existed. OPM believes that this documentation is an important requirement to ensure that only organizations that are currently providing human health and welfare services are admitted to participate in the CFC. As such, OPM is re-inserting this provision into the regulations via this technical amendment.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities. Charitable organizations applying to the CFC have an existing, independent obligation to comply with the eligibility and public accountability standards contained in current CFC regulations. This technical amendment will not cause significant additional burden.
Administrative practice and procedures, Charitable contributions, Government employees, Military personnel, Nonprofit organizations and Reporting and recordkeeping requirements.
E.O. 12353 (March 23, 1982), 47 FR 12785 (March 25, 1982). 3 CFR, 1982 Comp., p. 139. E.O. 12404 (February 10, 1983), 48 FR 6685 (February 15, 1983), Pub. L. 100-202, and Pub. L. 102-393 (5 U.S.C. 1101 Note).
(a) * * *
(1) Certify that the organization is a human health and welfare organization providing services, benefits, or assistance to, or conducting activities affecting, human health and welfare. The organization's application must provide documentation describing the health and human welfare benefits provided by the organization within the previous year.
Office of the Secretary, DHS.
Final rule.
This final rule adopts, without change, the Program Fraud Civil Penalties interim rule published by the Department of Homeland Security (DHS) on October 12, 2005. This rule finalizes uniform administrative procedures for DHS to implement the Program Fraud Civil Remedies Act of 1986 (the Act).
The interim rule is adopted as final as of March 12, 2007.
Michael Russell, Acting Deputy Associate General Counsel, Division of General Law, Office of the General Counsel, Department of Homeland Security, Washington, DC 20528. Telephone: 202-205-4634 or facsimile: 202-772-9735, not toll free calls; or e-mail:
The Program Fraud Civil Remedies Act of 1986, codified at 31 U.S.C. 3801-3812 and adjusted in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134), establishes an administrative remedy against anyone who makes a false Claim or written Statement to any of certain Federal agencies, including DHS. In brief, any person who submits a Claim or written Statement to an affected agency knowing or having reason to know that it is false, fictitious, or fraudulent, is liable for a penalty of up to $5,500 per false Claim or Statement and, in addition, with respect to Claims, for an assessment of up to double the amount falsely Claimed. The Act requires each affected Federal agency to publish rules and regulations necessary to implement the provisions of the Act. 31 U.S.C. 3809.
The interim rule, published on October 12, 2005, at 70 FR 59209, contains procedures governing the imposition of civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent Claims or written Statements to DHS or any of its components. The final rule adopts those regulations as final.
DHS solicited public comments on the interim rule and the comment period closed on November 15, 2005. DHS received one comment. The commenter expressed concern that the penalty of $5,500 per false Claim or Statement is far too low, because, the commenter asserted, the cost to the government for fraud exceeds this amount. The Act being implemented here limits the penalty and DHS is not authorized to exceed those limitations. The commenter also expressed concerns about how the government gives out money generally; these comments were beyond the scope of the rulemaking because the rule is limited to implementing the Program Fraud and Civil Remedies Act of 1986, and did not address government grant programs generally, or individual eligibility issues.
This final rule is considered by DHS to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. 58 FR 51735, October 4, 1993 (Executive Order). Under Executive Order 12866 a significant regulatory action is subject to an Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Executive 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 a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. As discussed in the interim rule, because this rule announces procedures for a unique and relatively new cabinet-level department, and because DHS engages in uncommon relief and assistance efforts such as those following Hurricane Katrina, this rule may raise novel policy issues. 70 FR 59209, 59211 (Oct. 12, 2005). Accordingly, the rule was reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act (RFA) mandates that an agency conduct an RFA analysis when an agency is “required by section 553 * * *, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for interpretative rule involving the internal revenue laws of the United States * * *.” 5 U.S.C. 603(a). RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). DHS determined that good cause existed under 5 U.S.C. 553(b)(B) to exempt this rule from the notice and comment requirements of 5 U.S.C. 553(b).
The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, UMRA 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 or more in any one year. UMRA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). DHS determined that good cause existed under 5 U.S.C. 553(b)(B) to exempt this rule from the notice and comment requirements of 5 U.S.C. 553(b).
This final rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. It will not preempt any state laws. In accordance with section 6 of Executive Order 13132, we determine that this rule will not have federalism implications sufficient to warrant the preparation of a federalism impact statement.
This final rule meets the applicable standards in section 3(a) and 3(b)(2) of Executive Order 12988.
This final rule will not require or invite any additional record or information maintenance, submission, or collection for the DHS programs. Therefore, this final rule will not invoke the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
Administrative practice and procedure, Claims, Fraud, Penalties.
Accordingly, for the reasons stated in the preamble, and pursuant to my authority as Secretary of Homeland Security, the interim rule adding 6 CFR part 13 that was published at 70 FR 59209 on October 12, 2005, is adopted as a final rule without change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS revises regulations implementing the South Pacific Tuna Act of 1988, as amended (SPTA), to reflect the changes agreed to in the Third Extension of the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America and its annexes, schedules, and implementing agreements, as amended (Treaty). New provisions under the Treaty relate to vessel monitoring system (VMS) requirements, vessel reporting requirements, area restrictions for U.S. purse seine vessels fishing under the Treaty, and allowing U.S. longline vessels to fish on the high seas portion of the Treaty Area. These actions are intended to bring the United States into compliance with its obligations under the Treaty.
Effective March 12, 2007.
Copies of the final regulatory flexibility analysis (FRFA), regulatory impact review, environmental assessment, and small entity compliance guide that were prepared for this final rule may be obtained from the Regional Administrator, NMFS, Pacific Islands Regional Office, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700, or by contacting Raymond P. Clarke by telephone at 808-944-2200 or by facsimile (fax) at 808-973-2941.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS, Pacific Islands Regional Office, and by e-mail to
Raymond P. Clarke, 808-944-2200.
On August 10, 2006, NMFS published a proposed rule (71 FR 45752) that would revise regulations at 50 CFR part 300, subpart D, in order to implement, under the authority of the SPTA (16 U.S.C. 973
The objective of this final rule is to fulfill the commitments of the United States to implement the amendments made in the Third Extension of the Treaty, which was agreed to in 2002 and expires June 14, 2013, as well as subsequent technical modifications made in the seventeenth annual formal consultation of the parties to the Treaty in March 2005.
This final rule implements four modifications to the Treaty, as summarized below. References to the term “FFA” mean the Pacific Islands Forum Fisheries Agency, in its capacity of Treaty Administrator on behalf of the Pacific Island parties to the Treaty. In addition to revising the regulations to implement these Treaty modifications, the regulations are revised to explicitly include the details of certain requirements that were until now incorporated only by reference to the Treaty and its annexes.
(1)
(2)
(3)
If the VMS unit malfunctions or fails, the owner or operator is required to provide notice of such failure or malfunction, submit substitute reports by an alternative means at intervals of no greater than 8 hours, and if directed by the FFA or NMFS, proceed to a designated port to repair or replace the VMS unit. Owners and operators of vessels licensed under the Treaty are also required to register annually on the FFA Vessel Register (in the past the FFA administered a “FFA VMS Register of Foreign Fishing Vessels” and a “FFA Regional Register of Foreign Fishing Vessels” but the two have been consolidated into a single “FFA Vessel Register”). NMFS will administratively facilitate the applications for registration on the register, but vessel owners and operators are responsible for completing the FFA registration forms and the payment of associated fees.
The contact information for the FFA, as Treaty Administrator, for the purpose of the manual position reports and the notifications required in certain circumstances in the VMS-related regulations, as well as for informational purposes, is as follows:
•
•
•
Updated contact information may be obtained from NMFS (see
Additional contact information for the FFA, as Treaty Administrator, for informational purposes is as follows:
•
•
Updated contact information may be obtained from the NMFS American Samoa field station,
The VMS data will be treated by NMFS as confidential business information. However, if VMS data are requested under FOIA, the responding agency will be required to determine the releasability of the information pursuant to any applicable exemptions. These new VMS requirements appear in the revised regulations at 50 CFR 300.45.
(4)
Additional background information may be found in the preamble to the proposed rule (71 FR 45752, August 10, 2006).
NMFS received two sets of comments on the proposed rule; summaries of those comments, and NMFS' responses, follow (see the Classification section for
Three changes have been made to the proposed rule: (1) The statement “The initial list of approved hardware and software will appear in the final rule for this action” has been removed from paragraph (d) of proposed 50 CFR 300.45. The referenced list is provided in this preamble to the final rule. (2) Corrections have been made to the numbering of the paragraphs referred to in 50 CFR 300.38. (3) An entry has been added in the table in 15 CFR 902.1(b), of control numbers issued by the Office of Management and Budget (OMB), which identifies the location of NOAA regulations for which OMB control numbers have been issued under the Paperwork Reduction Act (PRA) for collections of information. The additional entry identifies that the new 50 CFR 300.45, on VMS requirements, contains collection-of-information requirements and that the associated OMB control number is 0648-0218.
Under NOAA Administrative Order 205-11, dated December 17, 1990, the under Secretary for Oceans and Atmosphere has delegated authority to sign material for publication in the
This final rule has been determined to be not significant for purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the IRFA (which was summarized in the proposed rule), a summary of the significant issues raised by the public comments in response to the IRFA and NMFS’ responses to those comments, and a summary of the analyses completed to support the action. A copy of the FRFA is available from NMFS (see
A description of the need for, and objectives of, this final rule is contained at the beginning of this section in the preamble and in the
NMFS received one comment on the IRFA (as summarized in the proposed rule) and one comment not specifically on the IRFA but on an issue with possible economic implications. Those comments, and NMFS’ responses, follow.
NMFS finds that neither of the issues raised in these public comments gives reason to make any changes to the rule. The first issue, regarding the VMS-related registration costs, is one merely of clarifying the information presented in the IRFA. The second issue, regarding the potential difficulty in vessel operators providing accurate and timely information, is not a new issue created by this rule, and in any case NMFS has not identified any alternative that would provide the needed information with a lesser burden on small entities. NMFS has not made any changes to the rule as a result of these public comments.
Three of the measures in this final rule, the modified vessel reporting requirements, the VMS requirements, and the modified Closed and Limited Areas, will apply to owners and operators of U.S. purse seine vessels that operate in the Treaty Area. The measure to allow longline vessels access to the high seas portion of the Treaty Area will apply to owners and operators of U.S. longline vessels operating in the Pacific Ocean. Based on the number of U.S. purse seine vessels licensed under the Treaty and the number of U.S. longline vessels permitted to operate in the Pacific Ocean under the Magnuson-Stevens Fishery Conservation and Management Act and/or the High Seas Fishing Compliance Act as of June 2006, NMFS estimates that 12 purse seine vessels and approximately 183 longline vessels will be subject to the rule. These purse seine and longline vessels are owned by approximately 9 and 183 business entities, respectively. Based on (limited) financial information about these fishing fleets, NMFS believes that as many as 7 and 183 of the affected purse seine and longline business entities, respectively, are small business entities (i.e., they have gross annual revenues of less than $4.0 million).
The reporting, recordkeeping, and other compliance requirements of this final rule are described in the
(1)
(2)
(3)
(4)
The measures that will apply to the purse seine entities (particularly the VMS requirements) will impose the same cost burden on small entities as they will on large entities, so the cost as a proportion of gross revenues will generally be greater for small entities than for large entities. The same is true within the group of affected small entities: the smaller the business, the greater the burden is likely to be relative to gross revenues, assuming that profit margins are similar among firms. However, there is not a great difference in size (e.g. in terms of gross revenues) between the affected small and large entities or among the small entities, so the differences in the relative burdens by entity size are expected to be minor. No disproportionate burdens among affected entities according to other characteristics, such as homeport or area fished, are expected.
The measure that will apply to the longline entities (all of which are small entities) will not impose any costs on
NMFS considered several alternatives to this final rule. As a party to the Treaty, the U.S. has committed itself to implementation of the Treaty amendments. Consequently, NMFS has limited discretion with regard to implementation of the SPTA. One alternative NMFS considered is to take no action. However, NMFS rejected this alternative because it would not achieve the objectives of the SPTA, which are to implement the terms of the Treaty. NMFS also considered several alternatives to the VMS requirements. One is to encourage voluntary compliance with the VMS measures rather than issuing a rule that would make them mandatory. To the extent that voluntary compliance is achieved, the costs to small entities would be the same as under the preferred alternative. Because relying on voluntary compliance would make it difficult to ensure that the VMS requirements of the Treaty are met, NMFS rejected this alternative. Two other non-regulatory alternatives, which would require agreement by the parties to the Treaty, are to obtain the desired compliance and monitoring benefits via enhanced vessel observer coverage or enhanced aerial and surface surveillance activities rather than via a VMS. These alternatives could achieve the objectives of the SPTA at potentially lesser cost to small entities. However, the projected costs to the public of enhancing vessel observer coverage or aerial and surface surveillance to the extent needed to achieve the compliance and monitoring benefits offered by a VMS are significantly greater than the expected total costs of the VMS alternative. Because the cost of a VMS is significantly less than the costs of enhanced observer coverage or enhanced aerial and surface monitoring, NMFS rejected the alternatives of enhanced observer coverage and enhanced aerial and surface monitoring, and selected the VMS alternative for adoption in this final rule.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. Copies of the small entity compliance guide for this final rule are available from NMFS (see
This final rule contains VMS and vessel reporting collection-of-information requirements subject to the Paperwork Reduction Act (PRA) which have been approved by OMB under control number 0648-0218. The public reporting burden for the modified vessel reporting requirements is estimated to average 1 hour per catch report, with about five catch reports per year per respondent, and about 30 minutes per unloading logsheet, with about six unloading logsheets per year per respondent. The public reporting burden for the VMS requirements is estimated to average 30 minutes per year per respondent for what was formerly called the FFA Regional Register of Foreign Fishing Vessels application form, 15 minutes per year per respondent for what was formerly called the FFA VMS Register of Foreign Fishing Vessels application form, and 2 hours per year per respondent for VMS unit maintenance. As explained previously, the FFA consolidated the two previously-used vessel registers into a single “FFA Vessel Register” on about September 1, 2005, and there is now a single application form for the register. This consolidation had no effect on the information collection requirement or the estimated public reporting burden. These estimated burdens include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (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.
Prior notice and opportunity for public comment are not required with respect to the revision to the table of OMB control numbers in 15 CFR 902.1(b) because this action is a rule of agency organization, procedure or practice under 5 U.S.C. 553(b)(A).
Reporting and recordkeeping requirements.
Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.
44 U.S.C. 3501
(b) * * *
16 U.S.C. 973-973r.
(d) The number of available licenses is 45, five of which shall only be available to fishing vessels of the United States engaged in joint venture arrangements, specifically: Vessels engaged in fishing activity designed to promote maximization of the benefits generated for the Pacific Island Parties from the operations of fishing vessels licensed pursuant to the Treaty, as determined by the Administrator. Such activity can include the use of canning, transshipment, vessel slipping and repair facilities located in the Pacific Island Parties; the purchase of equipment and supplies, including fuel supplies, from suppliers located in the Pacific Island Parties; and the employment of nationals of the Pacific Island Parties on board such vessels.
(a) Holders of licenses issued under § 300.32 shall comply with the reporting requirements of this section with respect to the licensed vessels.
(b) Any information required to be recorded, or to be notified, communicated or reported pursuant to a requirement of these regulations, the Act, or the Treaty shall be true, complete and correct. Any change in circumstances that has the effect of rendering any of the information provided false, incomplete or misleading shall be communicated immediately to the Regional Administrator.
(c) The operator of any vessel licensed under § 300.32 must prepare and submit accurate, complete, and timely notifications, requests, and reports with respect to the licensed vessel, as described in paragraphs (c)(1) through (10) of this section.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(i)
(A) Each day while the vessel is within the Australian Fishing Zone, a report must be submitted that includes the following information: Vessel position (latitude and longitude to nearest minute of arc); and the amount of catch made during the previous day, by species.
(B) At least 24 hours before entering the Australian Fishing Zone, a notification must be submitted that indicates an intent to enter the Australian Fishing Zone.
(ii)
(A) Each day while the vessel is in Fiji fisheries waters, a report must be submitted that includes the following information: vessel name; IRCS; country of registration of the vessel; and vessel position at the time of the report (latitude and longitude to nearest minute of arc).
(B) Each week while the vessel is in Fiji fisheries waters, a report must be
(iii)
(A) At least 24 hours before entering a Closed Area under the jurisdiction of Kiribati, a notification must be submitted that includes the following information: vessel name; IRCS; vessel position at the time of the report (latitude and longitude to nearest minute of arc); the reason for entering the Closed Area; and the estimated time (in UTC) of entry into the Closed Area (latitude and longitude to nearest minute of arc).
(B) Immediately upon entry into or exit from a Closed Area under the jurisdiction of Kiribati, a report must be submitted that includes the following information: report type (“CAENT” for entry or “CAEXT” for exit); the number of the vessel's license issued under § 300.32; IRCS; date and time (in UTC) of the report; vessel position (latitude and longitude to nearest minute of arc); amount of the catch on board the vessel, by species; and status of the boom (“up” or “down”), net (“deployed” or “stowed”), and skiff (“deployed” or “stowed”).
(C) At least 24 hours prior to fueling the vessel from a tanker in the area of jurisdiction of Kiribati, a report must be submitted that includes the following information: report type (“SBUNK”); the number of the vessel's license issued under § 300.32; IRCS; trip start date; name of port from which trip started; amount of the catch on board the vessel, by species; estimated time of bunkering; estimated position of bunkering (latitude and longitude to nearest minute of arc); and name of tanker.
(D) After fueling the vessel from a tanker in the area of jurisdiction of Kiribati, but no later than 12 noon local time on the following day, a report must be submitted that includes the following information: report type (“FBUNK”); the number of the vessel's license issued under § 300.32; IRCS; start time of bunkering; end time of bunkering; amount of fuel received, in kiloliters; and name of tanker.
(iv)
(A) At least 24 hours before entering the exclusive economic zone of New Zealand, a notification must be submitted that includes the following information: name of vessel; IRCS; position of point of entry into the exclusive economic zone of New Zealand (latitude and longitude to nearest minute of arc); amount of catch on board the vessel, by species; and condition of the catch on board the vessel (“fresh” or “frozen”).
(B) For each day that the vessel is in the exclusive economic zone of New Zealand, a notification must be submitted no later than noon of the following day of the vessel's position (latitude and longitude to nearest minute of arc) at noon.
(C) For each week or portion thereof that the vessel is in the exclusive economic zone of New Zealand, a report that covers the period from 12:01 a.m. on Monday to 12 midnight on the following Sunday must be submitted and received by noon of the following Wednesday (local time). The report must include the amount of the catch taken in the exclusive economic zone of New Zealand during the reporting period.
(D) At least 10 days prior to an intended transshipment in an area under the jurisdiction of New Zealand, a notification must be submitted that includes the intended port, date, and time of transshipment.
(E) At least 24 hours prior to exiting the exclusive economic zone of New Zealand, a notification must be submitted that includes the following information: position of the intended point of exit (latitude and longitude to nearest minute of arc); the amount of catch on board the vessel, by species; and condition of the catch on board the vessel (“fresh” or “frozen”).
(v)
(A) At least 24 hours prior to entry into Solomon Islands Fisheries Limits, a report must be submitted that includes the following information: expected vessel position (latitude and longitude to nearest minute of arc) and expected date and time of entry.
(B) For each week or portion thereof that the vessel is in the exclusive economic zone of Solomon Islands, a report that covers the period from 12:01 a.m. on Monday to 12 midnight on the following Sunday must be submitted and received by noon of the following Tuesday (local time). The report must include the amount of the catch taken and the number of fishing days spent in the exclusive economic zone of Solomon Islands during the reporting period.
(vi)
(A) Each day while the vessel is in the exclusive economic zone of Tonga, a report must be submitted that includes the vessel's position (latitude and longitude to nearest minute of arc).
(B) [Reserved]
(vii)
(A) At least 24 hours prior to entering Tuvalu fishery limits, a report must be submitted that includes the following information: vessel name; IRCS; country of registration of the vessel; the number of the vessel's license issued under § 300.32; intended vessel position (latitude and longitude to nearest minute of arc) at entry; and amount of catch on board the vessel, by species.
(B) Every seventh day that the vessel is in Tuvalu fishery limits, a report must be submitted that includes vessel position (latitude and longitude to nearest minute of arc) and the total amount of catch on board the vessel.
(C) Immediately upon exit from Tuvalu fishery limits, a notification must be submitted that includes vessel position (latitude and longitude to nearest minute of arc) and the total amount of catch on board the vessel.
(a) * * *
(10) To transship fish on board a vessel that fished in the Licensing Area, except in accordance with the requirements of § 300.46.
(11) To fail to have installed, allow to be programmed, carry, or have operational a VMS unit while in the Treaty Area as specified in § 300.45(a).
(12) To fail to activate a VMS unit, to interrupt, interfere with, or impede the operation of a VMS unit, to tamper with, alter, damage, or disable a VMS unit, or to move or remove a VMS unit without prior notification as specified in § 300.45(e).
(13) In the event of a VMS unit failure or breakdown or interruption of automatic position reporting in the Treaty Area, to fail to submit manual position reports as specified in § 300.45(f).
(14) In the event of a VMS unit failure or breakdown or interruption of automatic position reporting in the Treaty Area and if directed by the Administrator or an authorized officer, to fail to stow fishing gear or take the vessel to a designated port as specified in § 300.45(f).
(15) To fail to repair or replace a VMS unit as specified in § 300.45(h).
(a) The prohibitions of § 300.38 and the licensing requirements of § 300.32 do not apply to fishing for albacore tuna by vessels using the trolling method or to fishing by vessels using the longline
(a) * * *
(1) * * *
(i) While fishing in the Licensing Area did not have a license issued under § 300.32 to fish in the Licensing Area, and that under the terms of the Treaty the fishing is not authorized to be conducted in the Licensing Area without such a license.
(b) Upon being advised by the Secretary of State that proper notification to Parties has been made by a Pacific Island Party that such Pacific Island Party is investigating an alleged infringement of the Treaty by a vessel in waters under the jurisdiction of that Pacific Island Party, the Secretary shall order the vessel to leave those waters until the Secretary of State notifies the Secretary that the order is no longer necessary.
(a)
(1) Have installed a VMS unit on board the licensed vessel;
(2) Allow the Administrator, its agent, or a person authorized by the Administrator to program the VMS unit to transmit position and related information to the Administrator;
(3) If directed by the Regional Administrator, allow NMFS, its agent, or a person authorized by NMFS to program the VMS unit to transmit position and related information to NMFS; and
(4) Carry and have operational the VMS unit at all times while in the Treaty Area, except as provided in paragraphs (f) and (g) of this section.
(b)
(c)
(d)
(e)
(1) Activate the VMS unit on board the licensed vessel to transmit automatic position reports;
(2) Ensure that no person interrupts, interferes with, or impedes the operation of the VMS unit or tampers with, alters, damages, or disables the VMS unit, or attempts any of the same; and
(3) Ensure that no person moves or removes the VMS unit from the installed position without first notifying the Administrator by telephone, facsimile, or e-mail of such movement or removal.
(f)
(1) The vessel owner or operator must submit manual position reports that include vessel name, call sign, current position (latitude and longitude to the nearest minute), date, and time to the Administrator by telephone, facsimile, or e-mail at intervals of no greater than eight hours or a shorter interval if and as specified by the Administrator or an authorized officer. The reports must continue to be submitted until the Administrator has confirmed to the vessel owner or operator that the VMS unit is properly transmitting position reports. If the manual position reports cannot be made, the vessel operator or owner must notify the Administrator of such as soon as possible, by any means possible.
(2) If directed by the Administrator or an authorized officer, the vessel operator must immediately stow the fishing gear in the manner described in § 300.36, take the vessel directly to a port designated by the Administrator or authorized officer, and notify the Administrator by telephone, facsimile, or e-mail as soon as possible that the vessel is being taken to port with fishing gear stowed.
(g)
(h)
(i)
(a)
(b) Transshipping may only be done at the time and place authorized for transshipment by the Pacific Island Parties, following the notification and request requirements of § 300.34(c)(5).
(c) The operator and each member of the crew of a vessel from which any fish taken in the Licensing Area is transshipped must:
(1) Allow and assist any person identified as an officer of the Pacific Island Party to:
(i) Have full access to the vessel and any place where such fish is being transshipped and the use of facilities and equipment that the officer may determine is necessary to carry out his or her duties;
(ii) Have full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish;
(iii) Remove samples;
(iv) Have full access to the vessel's records, including its log and documentation, for the purpose of inspection and copying; and
(v) Gather any other information required to fully monitor the activity without interfering unduly with the lawful operation of the vessel; and
(2) Not assault, obstruct, resist, delay, refuse boarding to, intimidate, or interfere with any person identified as an officer of the Pacific Island Party in the performance of his or her duties.
(d) Transshipping at sea may only be done:
(1) In a designated area in accordance with such terms and conditions as may be agreed between the operator of the vessel and the Pacific Island Party in whose jurisdiction the transshipment is to take place;
(2) In accordance with the requirements of § 300.34; and
(3) If the catch is transshipped to a carrier vessel duly authorized in accordance with national laws.
Internal Revenue Service (IRS), Treasury.
Temporary regulation.
This document contains temporary regulations relating to deductions for the cost of producing film and television productions under section 181. These temporary regulations reflect changes to the law made by the American Jobs Creation Act of 2004 and the Gulf Opportunity Zone Act of 2005, and affect taxpayers that produce films and television productions within the United States. The text of these temporary regulations also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the
Bernard P. Harvey, (202) 622-3110 (not a toll-free number).
These temporary regulations are being issued without prior notice and public procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). For this reason, the collections of information contained in these regulations have been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-2059. Responses to these collections of information are required to obtain a tax benefit.
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.
For further information concerning this collection of information, and where to submit comments on the collection of information and the accuracy of the estimated burden, and suggestions for reducing this burden, please refer to the preamble of the cross-referencing notice of proposed rulemaking published in the Proposed Rules section in this issue of the
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains amendments to 26 CFR part 1 to provide regulations under section 181 of the Internal Revenue Code of 1986 (Code). Section 181 was added to the Code by section 244 of the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 1418) (Oct. 22, 2004), and was modified by section 403(e) of the Gulf Opportunity Zone Act of 2005, Public Law 109-135 (119 Stat. 2577) (Dec. 21, 2005).
For several years, independent filmmakers and television producers have moved production activities from the United States to other countries. Frequently, this has been motivated by credits and other incentives offered by foreign governments to attract the economic benefits gained by hosting these productions. Congress enacted section 181 to make domestic production more attractive to these taxpayers.
Section 181 permits the owner of a qualified film or television production to elect to deduct production costs in the year the costs are paid or incurred in lieu of capitalizing the costs and recovering them through depreciation allowances if the aggregate costs do not exceed $15 million for each qualifying production ($20 million if a significant amount of the production costs are incurred in certain designated areas) (the “production cost limit”). A film or television production is a qualified film or television production if 75 percent of the total compensation of the production is compensation for services performed in the United States by actors, directors, producers, and other relevant production personnel (the “75 percent test”).
The deduction under section 181 is allowed for the cost of producing qualified film and television productions for which principal photography begins after October 22, 2004, and before January 1, 2009. Production costs incurred before or after this period may be deducted so long as principal photography commences during the period.
Section 181 refers to “the taxpayer” who makes the election and takes the deduction. The temporary regulations provide that only the owner of the film or television production may elect to deduct production costs under section 181. Under the regulations, the owner of the production is deemed to be the person or persons otherwise required to capitalize production costs into the basis of the film or television production under section 263A (or the person or persons that would be required to capitalize production costs if subject to section 263A).
The production costs that must be taken into account (for both the amount of the deduction and for the production cost limit) are the amounts that, absent section 181, are required to be capitalized under section 263A (or the amounts that would be required to be capitalized if the taxpayer was subject to section 263A). Although a film's budget might be evidence that the production costs will not exceed the production cost limit, the budget is not the same as production costs for purposes of section 181. All production costs eligible to be deducted under section 181 are subject to the production cost limit. Under the temporary regulations, distribution costs are specifically excluded from the definition of production costs under section 181, consistent with the exclusion of distribution costs under section 263A.
Section 181 does not require the production to be placed in service in order for the producer to begin deducting production costs, and there is no requirement that the production ever be placed in service or completed. However, the temporary regulations require that, at the time the election is made and in any year that a deduction is claimed, a taxpayer must have a reasonable basis for believing that the production will be set for production (as defined in American Institute of Certified Public Accountants Statement of Position 00-2), will be a qualified film or television production upon completion, and will not exceed the production cost limit. For example, a taxpayer that has developed a shooting script, has a well-documented budget, and has obtained financing on the basis of these facts is in a good position to determine whether it has a reasonable basis to claim the deduction.
The temporary regulations treat the cost of acquiring a production as a production cost. This rule is premised upon the understanding that under section 1245, the seller would recapture upon the sale of the production any section 181 deduction that the seller had claimed. In the case of a sale between related parties, the purchaser must treat the greater of the acquisition cost or the seller's production cost as the purchaser's production cost for purposes of the production cost limit, notwithstanding that the purchaser's deduction under section 181 is based on the purchaser's actual acquisition cost.
In the film industry, once a prospective producer has determined the estimated budget for a production, it usually must obtain financing from a bank or other lender to cover at least part of the production cost. The producer may incur up-front costs in obtaining such financing. The producer's pre-sale agreements with distributors may be used as collateral for this financing. Generally, the financier will be repaid directly by these distributors upon delivery of the finished production. In addition, the financier will usually require that the producer obtain a completion guarantee (often referred to as a completion bond) as a condition of the loan. The completion guarantee is a guarantee that, if the production costs exceed the budgeted costs or the loan proceeds are mishandled, the film will still be completed and/or the financier will be made whole. A completion guarantee can be satisfied in a number of ways. For example, the guarantor may loan funds to the producer to finish the production, may finish the production itself (although this is rare), or may reimburse the financier for the amount loaned to the producer (plus interest and other charges). Generally, the producer must pay an up-front amount in order to obtain a completion guarantee.
The temporary regulations provide that the costs of obtaining financing, including premium costs for completion guarantees, are production costs that are subject to the production cost limit and are deductible under section 181. In addition, if the completion guarantor loans additional funds to the producer and the funds are expended by the producer to complete the production, or if the completion guarantor incurs additional production costs on its own behalf, the additional funds are production costs under section 181.
Participations and residuals (P&R) are defined in section 167(g)(7)(B), as costs with respect to an item of property described in section 167(g)(6), the amount of which by contract varies with the amount of income earned in connection with the property. In the context of film and television production, participations are payments to actors, directors, and other talent based on a contractually-defined measure of future income from the production. Residuals are payments made pursuant to collective-bargaining agreements, such as those of the directors' and actors' guilds, based upon non-theatrical sales, under terms that differ between video, free television, and pay television sales. Participations are generally paid by the producer but may be assumed by a third-party distributor. On the other hand, residuals are generally paid by a distributor out of its gross receipts from the production. Industry accounting generally treats participation payments made by distributors as a reduction in the producer's profit rather than a production cost, and generally treats residual payments made by distributors as a distribution cost.
Various comments were received with respect to the treatment of P&R under section 181. Some comments suggested that taxpayers be permitted to elect to deduct participation payments (rather than capitalizing those payments into the basis of the production) under the income forecast method rather than section 181. Other comments suggested that Congress, by specifically excluding P&R costs paid or incurred by the taxpayer from the definition of “qualified compensation” in section 181(d)(3), intended these costs to be excluded from the production cost limit in section 181(a)(2). Comments received also suggested that P&R costs should be excluded for purposes of determining whether the production cost limit is exceeded, but nonetheless should be deductible production costs under section 181.
In addition, various comments expressed concerns about productions being subsequently disqualified if P&R costs are included in determining if the production cost limit is exceeded. For example, a taxpayer forecasts its production costs (including a reasonable amount of P&R costs based upon projected income from the production) and based upon this forecast the taxpayer determines it has a reasonable basis for making an election under section 181. However, if an unexpectedly large amount of P&R is later paid as a result of production earnings being much greater than was
The temporary regulations provide that P&R costs are considered production costs for purposes of the production cost limit. The IRS and Treasury Department recognize that P&R costs are costs that are generally subject to capitalization under section 263A (see § 1.263A-1(e)(2) and § 1.263A-1(e)(3)). Nonetheless, an explicit reference to P&R costs is provided in the temporary regulations in order to avoid any uncertainty with respect to these costs.
The IRS and Treasury Department believe that the statute requires P&R costs to be included in the production cost limit. For example, the statute specifically provides that participations and residuals are excluded from the definition of compensation for purposes of determining whether the production was a qualified film or television production, as defined in section 181(d)(1). This explicit exclusion is not found in the production cost limit of section 181(a)(2) or elsewhere in section 181.
In addition, the IRS and Treasury Department are concerned that if P&R costs were excluded from the definition of production costs under section 181, section 181(b) could cause them to be nondeductible under any provision of the Internal Revenue Code. Specifically, section 181(b) states that no depreciation or amortization deduction other than the deduction provided under section 181 is allowed for the basis of a qualified film or television production for which an election has been made. Therefore, if P&R costs were excluded from the definition of production costs under section 181, a taxpayer wishing to expense P&R costs under the holding of
Additionally, the IRS and Treasury Department are concerned that a blanket exclusion of participations from the definition of production costs would allow taxpayers to manipulate the total production cost (and avoid the production cost limit) by structuring compensation as participation payments. Commentators argued that this potential abuse could be mitigated with an anti-abuse rule that treats only those participations that are disguised non-contingent or guaranteed payments, where the talent incurs minimal risk of non-payment (for example, participations with a payment priority over distribution cost repayment and/or production financing cost repayment) as production costs subject to the production cost limit, but does not treat other participation costs as production costs.
The IRS and Treasury Department considered excluding from the amount to be taken into consideration as production costs any residuals (payments to actors' or directors' guilds based on gross income from exploitation in secondary markets) that are paid by the distributor or other third party, under the theory that these payments are costs of exploiting the finished production. However, the same argument could be advanced for participations contingent on income, notwithstanding that most participations are taken in lieu of compensation for services (normally a production cost). In addition, a payment of residuals by a third party is still made on the producer's behalf, and the producer remains the party with ultimate liability for the payment. Thus, the temporary regulations provide that P&R costs are production costs that are deductible under section 181 and are included in the production cost limit.
Section 181(a)(2)(B) provides a higher production cost limit for a qualified film or television production “the aggregate cost of which is significantly incurred” in a designated area. Designated areas include areas eligible for designation as low-income communities or certain distressed counties and isolated areas. However, neither the statute nor its legislative history provides a definition for “significantly incurred,” nor do they explain how the standard should be applied. However, Congress' stated intent in enacting section 181 was to encourage economic activity in these designated areas. Accordingly, the temporary regulations provide two different tests for establishing when production costs have been significantly incurred in a designated area. One test is based upon production costs while the other is based upon days of production. Under the first of these tests, the temporary regulations establish a 20 percent threshold for the “significantly incurred” standard (similar to the rules of § 1.199-3(g)(3)). This test compares production costs incurred in first-unit principal photography that takes place in a designated area to all production costs incurred for first-unit principal photography. First-unit principal photography typically films the primary actors, whereas second-unit principal photography typically films shots that establish location or context (exteriors of buildings, crowds, cars passing). Production costs of principal photography include, for example, compensation to actors, directors and other production personnel, location costs, camera rental and insurance, and catering. This 20 percent test is based upon production costs incurred in first-unit principal photography and ignores all other production costs such as preproduction, editing, and postproduction costs for purposes of the “significantly incurred” requirement. These other production costs often greatly exceed principal photography costs, and must be incurred where adequate production facilities exist (and it is likely that few such facilities are available in the designated areas). The IRS and Treasury Department believe that if all production costs were taken into consideration in determining whether the 20 percent “significantly incurred” threshold had been met, very few films would qualify for the higher production cost limit, even if a substantial amount of principal photography occurred in a designated area. However, we request comments regarding whether the exclusion of preproduction, editing, and postproduction costs will unfairly impact taxpayers.
Comments were received requesting that consideration be given to developing a “significantly incurred” test based upon the number of days of principal photography. The temporary regulations adopt this suggestion and provide, as an alternative to the 20 percent cost-based test, a “significantly incurred” test based upon the total number of days of principal photography. Under this test, if at least 50 percent of the total days of principal photography take place in a designated area, the production will be deemed to have satisfied the “significantly incurred” requirement of section 181(a)(2)(B). This 50 percent test may provide a simpler computation than the 20 percent cost-based test and avoids issues such as the allocation of salaries to specific days of principal photography.
A taxpayer intending to utilize the $20 million production cost limit under section 181(a)(2)(B) must maintain records adequate to demonstrate that it has a reasonable basis under the “significantly incurred” standard to support reliance on the higher dollar limitation.
The Conference report underlying section 181 provides that, until the
Many films are owned by a passthrough entity with more than one owner. The temporary regulations provide that if the production is owned by a partnership, the election is made at the partnership level.
Section 181(c)(2) provides that an election under section 181 may not be revoked without the consent of the Secretary. However, the election is effectively revoked if the production costs exceed the production cost limit or if the production fails to be a qualified film or television production. In recognition of the concerns expressed by commentators over the inclusion of P&R costs in the definition of production costs under section 181, and the fact that the requirements of section 181 may ultimately not be met notwithstanding a prior reasonable basis for believing otherwise, the temporary regulations permit taxpayers to revoke a section 181 election by filing a statement with the return for the taxable year in which the revocation is effective identifying the production for which the election is revoked. The return for that taxable year must also report compliance with the recapture provisions discussed in “Special Rules” in this preamble.
Both the Senate report and the Conference report underlying section 181 state that “the provision defines a qualified film or television production as any production of a motion picture (whether released theatrically or directly to video cassette or any other format); miniseries; scripted, dramatic television episode; or movie of the week” that satisfies the 75 percent test. The definition provided in the Senate report and the Conference report arguably would exclude productions that do not fall within these delineated categories, such as reality programming, documentaries, sports programs, news programs, variety shows, game shows, live performances, interview and talk shows, commercials and “infomercials,” religious/inspirational programming, educational programming, exercise shows, training videos, and others. Comments were received noting that it appeared from the legislative history that Congress intended for the provision to apply only to a motion picture, miniseries, scripted dramatic television episode, or movie of the week. Notwithstanding the legislative history, section 181(d)(2) itself defines a production as “property described in section 168(f)(3).” Section 168(f)(3) property is “any film or video tape.” Accordingly, the temporary regulations adopt the broader statutory definition provided in section 168(f)(3) and specifically define a production under section 181 to include any film or video tape production the production cost of which is subject to capitalization under section 263A.
Once a film or television production is released or broadcast, the taxpayer may face additional costs to prepare the production for foreign distribution, rebroadcast (for example, editing a theatrical film for television), or release to the home video market. Consistent with the approach taken under the income forecast method (see section 167(g)(5)(A)(ii)), these costs are not treated as production costs of the film or television production for purposes of the production cost limit under section 181(a)(2), and no deduction may be taken under section 181 for such costs.
Section 181(d)(1) compares qualified compensation to total compensation in applying the 75 percent test. Although qualified compensation is defined by section 181(d)(3)(A) as compensation for services performed in the United States by actors, directors, producers, and other relevant production personnel, the 75 percent test compares this amount to the “total compensation of the production.” In order to be consistent with the definition provided for in section 181(d)(3)(A), the temporary regulations define “total compensation of the production” as the total amount of compensation paid for services performed anywhere by actors, directors, producers, and other relevant production personnel in the production of the film or television production. In addition, the temporary regulations specifically provide that the terms compensation and qualified compensation include compensation paid to persons who are not directly employed by the producer.
The term
There are some services related to a production that may physically take place at a variety of places outside the control and knowledge of the producer (for example, training, rehearsal, and pre- and post-production). However, the producer has direct or indirect control and knowledge of the shooting location of principal photography with which these other services are associated. Therefore, the IRS and Treasury Department believe that as a general rule the 75 percent test should be based upon the locations where principal photography occurs.
In this regard, the temporary regulations provide a special rule for animated productions. Although these productions may have a “principal photography” analogue, the production process is completely different and the majority of the work of the “talent” is performed independent of the actual frame photography. Computer-generated animation is not photographed at all. Hand-drawn animated films involve the creation of a storyboard (sketches of the story action) by the principal artists. Once the storyboards are approved, individual frames showing important moments in the action called “keyframes” are created by the principal artists, after which the frames in between these frames (the “in-betweens”) are produced by assistant animators. These in-betweens are frequently outsourced overseas. Background art is created separately. The animation frames are transferred to plastic cels with a copier or, in some cases, are hand painted on the cels (or
The production process for computer animation is similar, except that the principal artists work directly with computer programmers to create keyframe images in the animation software. In-between work is less likely to be outsourced, as the computer can generate most in-between frames from the keyframes themselves. Background art can be created within the computer program or scanned in from physical artwork. Post-production is generally done completely in the digital realm, and the final product is output to disc.
The temporary regulations apply the 75 percent test to animated productions based upon the production locations for (at least) the keyframe animation, the in-between animation, the animation photography, and the recording of the voice acting performances instead of the location where principal photography takes place. A separate rule is provided for productions that combine animation and live action, taking into account the production locations for the animation functions in addition to the location of principal photography.
The version of the legislation that became section 181 (as originally passed by the Senate) provided a deduction for production costs up to $15 million, and allowed production costs in excess of $15 million to be depreciated using the straight-line method over a 36-month period. Jumpstart Our Business Strength (JOBS) Act, S. 1637, 108th Cong. § 321 (2003). The depreciation provision was removed in conference, with the result that the deduction does not apply to qualified film or television productions with an aggregate production cost in excess of $15 million ($20 million if a significant amount of the production costs are incurred in designated areas.) Section 181 is silent as to what should happen when a production appears to meet the requirements of section 181 in the year the election is first made, but fails to meet those requirements thereafter (for example, when the production cost exceeds $15 million, or when the production no longer meets the 75 percent test).
The temporary regulations provide a recapture provision that requires the recapture of any production costs previously deducted under section 181 in the year the election is voluntarily revoked or the production fails to meet the requirements of section 181. For property already placed in service, the taxpayer must include in income the difference between the aggregate amount claimed under section 181 and the depreciation that would have been otherwise allowable with respect to the production in the same years. For a production not yet placed in service, the taxpayer must include in income the aggregate amount claimed under section 181. The structure of the recapture provision is intended in part to alleviate concerns that including P&R in the definition of production costs under section 181 would cause taxpayers to completely forgo the benefits of section 181. Under the temporary regulations, a taxpayer with a reasonable belief that it is producing a qualified film or television production, and that the production cost will not exceed the production cost limit, will be permitted to elect to currently deduct production costs under section 181 with the understanding that a recapture may be required in a later year if circumstances or expectations change. A taxpayer that is required to recapture previously deducted production costs under section 181 will nonetheless be permitted to deduct otherwise allowable depreciation expenses in future years.
Prior to the technical correction enacted in the Gulf Opportunity Zone Act of 2005, a taxpayer could potentially incur production costs, deduct the production costs under section 181 against ordinary income, then sell the film after holding it for one year and report the proceeds (including the gain attributable to the basis reduction from the section 181 deduction) as a long-term capital gain, effectively converting ordinary income to capital gain. This potential “tax flip,” existed because, as originally enacted, the statute did not specify that the deduction under section 181 is a deduction for depreciation or amortization, or state that it is subject to recapture under section 1245. The technical correction specifically treats a deduction under section 181 as a deduction for depreciation or amortization that is subject to recapture under section 1245, and the temporary regulations follow this rule.
The temporary regulations apply to qualified film and television productions with respect to which principal photography or, in the case of an animated production, in-between animation, commenced on or after February 9, 2007 and before January 1, 2009.
The following publications are modified as of February 9, 2007:
Notice 2006-47 (2006-20 IRB 892) is modified by removing section B.2. in the INTERIM PROVISIONS of Notice 2006-20.
Rev. Proc. 2002-9 (2002-1 CB 327) is modified and amplified to include the automatic changes in methods of accounting in § 1.181-2T(d)(2) and (e)(1) in the Appendix of Rev. Proc. 2002-9.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), please refer to the Special Analyses section of the preamble to the cross-reference notice of proposed rulemaking published in the Proposed Rules section in this issue of the
The principal author of these regulations is Bernard P. Harvey, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
This section lists the table of contents for §§ 1.181-1T through 1.181-6T.
(a) Deduction.
(1) In general.
(2) Owner.
(3) Production costs.
(b) Limit on amount of production costs and amount of deduction.
(1) In general.
(2) Higher limit for productions in certain areas.
(i) In general.
(ii) Significantly incurred.
(iii) Animated film and television productions.
(iv) Productions incorporating both live action and animation.
(v) Records required.
(c) No other depreciation or amortization deduction allowed.
(a) Time and manner of making election.
(b) Election by entity.
(c) Information required.
(1) Initial election.
(2) Subsequent taxable years.
(3) Deductions by more than one owner.
(d) Revocation of election.
(1) In general.
(2) Consent granted.
(e) Transition rules.
(1) Costs first paid or incurred prior to October 23, 2004.
(2) Returns filed after June 14, 2006, and before March 12, 2007.
(3) Information required.
(a) In general.
(b) Production.
(1) In general.
(2) Special rules for television productions.
(3) Exception for certain sexually explicit productions.
(c) Compensation.
(d) Qualified compensation.
(e) Special rule for acquired productions.
(f) Other definitions.
(1) Actors.
(2) Production personnel.
(3) United States.
(a) Recapture.
(1) Applicability.
(2) Principal photography not commencing prior to January 1, 2009.
(3) Amount of recapture.
(b) Recapture under section 1245.
(a) In general.
(b) Application of regulation project REG-115403-05 to pre-effective date productions.
(c) Special rules for returns filed for prior taxable years.
(a)
(2)
(3)
(ii) Production costs do not include costs paid or incurred to distribute or exploit a production (including advertising and print costs).
(iii) Production costs do not include the costs to prepare a new release or new broadcast of an existing film or video after the initial release or initial broadcast of the film or video (for instance, the preparation of a DVD release of a theatrically-released film, or the preparation of an edited version of a theatrically-released film for television broadcast). Costs paid or incurred to prepare a new release or a new broadcast of a film or video that has previously been released or broadcast, therefore, are not taken into account for purposes of paragraph (b) of this section, and may not be deducted under this paragraph (a).
(iv) If a production (or any right or interest in a production) is acquired from any person bearing a relationship to the taxpayer described in section 267(b) or section 707(b)(1), and the costs paid or incurred to acquire the production are less than the seller's production cost, the purchaser must treat the seller's production cost as a production cost of the acquired production for purposes of determining whether the aggregate production cost paid or incurred with respect to the production exceeds the applicable production cost limit imposed under paragraphs (b)(1) and (b)(2) of this section. Notwithstanding this paragraph (a)(3)(iv), the taxpayer's deduction under section 181 is limited to the taxpayer's acquisition cost of the production plus any further production costs incurred by the taxpayer.
(v) The provisions of this paragraph (a) apply notwithstanding the provisions of section 167(g)(7)(D).
(b)
(2)
(A) A low income community under section 45D; or
(B) A distressed county or isolated area of distress by the Delta Regional Authority established under 7 U.S.C section 2009aa-1.
(ii)
(A) At least 20 percent of the total production cost incurred in connection with first-unit principal photography for the production is incurred in connection with first-unit principal photography that takes place in such areas; or
(B) At least 50 percent of the total number of days of first-unit principal photography for the production consists of days during which first-unit principal photography takes place in such areas.
(iii)
(A) At least 20 percent of the total production cost incurred in connection with keyframe animation, in-between animation, animation photography, and the recording of voice acting performances for the production is incurred in connection with such activities that take place in such areas; or
(B) At least 50 percent of the total number of days of keyframe animation, in-between animation, animation photography, and the recording of voice acting performances for the production consists of days during which such activities take place in such areas.
(iv)
(A) At least 20 percent of the total production cost incurred in connection with first-unit principal photography, keyframe animation, in-between animation, animation photography, and the recording of voice acting performances for the production is incurred in connection with such activities that take place in such areas; or
(B) At least 50 percent of the total number of days of first unit principal photography, keyframe animation, in-between animation, animation photography, and the recording of voice acting performances for the production consists of days during which such activities take place in such areas.
(v)
(c)
(2) An owner may make an election under section 181 despite prior deductions claimed for amortization of the cost of acquiring or developing screenplays, scripts, story outlines, motion picture production rights to books and plays, and other similar properties for purposes of potential future development or production of a production under any provision of the Code if such costs were incurred before the first taxable year in which an election could be made under § 1.181-2T(a). However, the production cost of the production does not include costs that a taxpayer has begun to amortize prior to the time that the production is set for production (for further guidance, see Rev. Proc. 2004-36 (2004-1 CB 1063) and § 601.601(d)(2)(ii)(
(a)
(2) An owner may not make an election under paragraph (a)(1) of this section until the first taxable year in which the owner reasonably expects (based on all of the facts and circumstances) that—
(i) The production will be set for production and will, upon completion, be a qualified film or television production; and
(ii) The aggregate production cost paid or incurred with respect to the production will, at no time, exceed the applicable production cost limit set forth under § 1.181-1T(b) of the regulations.
(3) If the election under this paragraph (a) is made in a taxable year subsequent to the taxable year in which production costs were first paid or incurred because paragraph (a)(2) of this section was not satisfied until such subsequent taxable year, the election must be made in the first such taxable year, and any production costs incurred prior to the taxable year in which the taxpayer makes the election are treated as production costs (except as provided in § 1.181-1T(c)(2)) that are deductible under § 1.181-1T(a) in the taxable year paragraph (a)(2) of this section is first satisfied and the election is made.
(b)
(c)
(i) The name (or other unique identifying designation) of the production;
(ii) The date production costs were first paid or incurred with respect to the production;
(iii) The amount of production costs (as defined in § 1.181-1T(a)(3)) paid or incurred with respect to the production during the taxable year (including costs described in § 1.181-2T(a)(3));
(iv) The aggregate amount of qualified compensation (as defined in § 1.181-3T(d)) paid or incurred with respect to the production during the taxable year (including costs described in § 1.181-2T(a)(3));
(v) The aggregate amount of compensation (as defined in § 1.181-3T(c)) paid or incurred with respect to the production during the taxable year (including costs described in § 1.181-2T(a)(3));
(vi) If the owner expects that the total production cost of the production will be significantly paid or incurred in (or, if applicable, if a significant portion of the total number of days of principal photography will occur in) one or more of the areas specified in § 1.181-1T(b)(2)(i), the identity of the area or areas, the amount of production costs paid or incurred (or the number of days of principal photography engaged in) for the applicable activities described in § 1.181-1T(b)(2)(ii), (iii), or (iv), as applicable, that take place within such areas (including costs described in § 1.181-2T(a)(3)), and the total production cost paid or incurred (or the total number of days of principal photography engaged in) for such activities (whether or not they take place in such areas), for the taxable year (including costs described in § 1.181-2T(a)(3)); and
(vii) A declaration that the owner reasonably expects (based on all of the facts and circumstances at the time the election was filed) both that the production will be set for production (or has been set for production) and will be a qualified film or television production, and that the aggregate production cost of the production paid or incurred will not, at any time, exceed the applicable dollar amount set forth under § 1.181-1T(b).
(2)
(i) The name (or other unique identifying designation) of the production;
(ii) The date the production costs were first paid or incurred;
(iii) The amount of production costs paid or incurred by the owner with respect to the production during the taxable year;
(iv) The amount of qualified compensation paid or incurred with respect to the production during the taxable year;
(v) The aggregate amount of compensation paid or incurred with respect to the production during the taxable year, and the aggregate amount of compensation paid or incurred with respect to the production in all prior taxable years;
(vi) If the owner expects that the total production cost of the production will be significantly paid or incurred in (or, if applicable, if a significant portion of the total number of days of principal photography will occur in) one or more of the areas specified in § 1.181-1T(b)(2)(i), the identity of the area or areas, the amount of production costs paid or incurred (or the number of days of principal photography engaged in) for the applicable activities described in § 1.181-1T(b)(2)(ii), (iii), or (iv), as applicable, that take place within such areas, and the total production cost paid or incurred (or the number of days of principal photography engaged in) for such activities (whether or not they take place in such areas), for the taxable year; and
(vii) A declaration that the owner continues to reasonably expect (based on all of the facts and circumstances at the time the election was filed) both that the production will be set for production (or has been set for production) and will be a qualified film or television production, and that the aggregate production cost of the production paid or incurred will not, at any time, exceed the applicable dollar amount set forth under § 1.181-1T(b).
(3)
(d)
(2)
(i) Files a Federal income tax return in which the owner complies with the recapture provisions of § 1.181-4T(a) to recapture the amount described in § 1.181-4T(a)(3); and
(ii) Attaches a statement to the owner's return clearly indicating the name (or other unique identifying designation) of the production, and stating that the election under section 181 with respect to that production is being revoked pursuant to § 1.181-2T(d)(2).
(e)
(i) Filing an amended Federal tax return for the taxable year in which production costs were first paid or incurred, and for all subsequent affected taxable year(s), on or before November 15, 2006, provided that all of these years are open under the period of limitations for assessment under section 6501(a); or
(ii) Filing a Form 3115, “Application For Change in Accounting Method,” for the first or second taxable year ending on or after December 31, 2005, in accordance with the administrative procedures issued under § 1.446-1(e)(3)(ii) for obtaining the Commissioner's automatic consent to a change in accounting method (for further guidance, for example, see Rev. Proc. 2002-9, 2002-1 CB 327, and § 601.601(d)(2)(ii)(
(2)
(3)
(a)
(b)
(2)
(3)
(i) Contains one or more visual depictions made after November 1, 1990, of active sexually explicit conduct; and
(ii) is produced in whole or in part with materials that have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce.
(c)
(d)
(e)
(f)
(1)
(2)
(3)
(a)
(i) The aggregate production cost of the production exceeds the applicable production cost limit under § 1.181-1T(b);
(ii) The owner no longer reasonably expects (based on all of the facts and circumstances at the time the election was filed) both that the production will be set for production (or has been set for production) and will be a qualified film or television production, and that the aggregate production cost of the production paid or incurred will not, at any time, exceed the applicable dollar amount set forth under § 1.181-1T(b); or
(iii) the taxpayer revokes the election pursuant to § 1.181-2T(d).
(2)
(3)
(i) For a production that is placed in service in a taxable year prior to the taxable year in which recapture is triggered, the difference between the aggregate amount claimed as a deduction under section 181 with respect to the production in all such prior taxable years and the aggregate depreciation deductions that would have been allowable with respect to the property for such prior taxable years (or that the taxpayer could have elected to deduct in the taxable year that the property was placed in service) with respect to the production under the taxpayer's method of accounting; or
(ii) For a production that has not been placed in service, the aggregate amount claimed as a deduction under section 181 with respect to the production in all such prior taxable years.
(b)
The following examples illustrate the application of §§ 1.181-1T through 1.181-4T:
X, a corporation using a calendar taxable year, is a producer of films. X is the owner (within the meaning of § 1.181-1T(a)(2)) of film ABC. X incurs production costs in year 1, but does not commence principal photography for film ABC until year 2. In year 1, X reasonably expects, based on all of the facts and circumstances, that film ABC will be set for production and will be a qualified film or television production, and that at no time will the production cost of film ABC exceed the applicable production cost limit of § 1.181-1T(b). Provided that X satisfies all other requirements of §§ 1.181-1T through 1.181-4T and § 1.181-6T, X may deduct in year 1 the production costs for film ABC that X incurred in year 1.
The facts are the same as in
The facts are the same as in
The facts are the same as in
(a)
(2) The applicability of §§ 1.181-1T through 1.181-5T expires on February 8, 2010.
(b)
(c)
26 U.S.C. 7805.
(b) * * *
Alcohol and Tobacco Tax and Trade Bureau (TTB), Treasury.
Final rule; Treasury decision.
This Treasury decision establishes the Outer Coastal Plain viticultural area in southeastern New Jersey. The viticultural area consists of approximately 2,255,400 acres and includes all of Cumberland, Cape May, Atlantic, and Ocean Counties and portions of Salem, Gloucester, Camden, Burlington, and Monmouth Counties. We designate viticultural areas to allow bottlers to better describe the origin of their wines and to allow consumers to better identify the wines they may purchase.
Jennifer Berry, Alcohol and Tobacco Tax and Trade Bureau, Regulations and Rulings Division, P.O. Box 18152, Roanoke, VA 24014; telephone 540-344-9333.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographical origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—
• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;
• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;
• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;
• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and
• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.
James Quarella of Bellview Winery, Landisville, New Jersey, petitioned TTB to establish the “Outer Coastal Plain” as an American viticultural area in southeastern New Jersey. The proposed viticultural area covers approximately 2,255,400 acres and includes all of Cumberland, Cape May, Atlantic, and Ocean Counties and portions of Salem, Gloucester, Camden, Burlington, and Monmouth Counties. According to the petitioner, the area currently includes thirteen wineries, several vineyards, and approximately 750 acres planted to vines. We summarize below the evidence submitted in support of the petition.
The Outer Coastal Plain is one of five defined physiographic regions of New Jersey. The other regions are the Inner Coastal Plain, the Newark Basin Piedmont, the Highlands, and the Appalachian Valley and Ridge.
The Outer Coastal Plain includes most of the State's Atlantic coastline and the area known as the “Pinelands” or “Pine Barrens.” The petitioner states that most geology reference sources and such
As evidence that the proposed viticultural area is known locally and nationally by this name, the petitioner submitted several documents that identify the area as the “Outer Coastal Plain.” These documents included—
• A map from a National Park Service Web site showing landform regions in New Jersey, at
• A map entitled “Geographic Boundaries of the Outer Coastal Plain (OCP) of New Jersey,” issued by the New Jersey Department of Environmental Protection; and
• A list of native trees and shrubs for the Outer Coastal Plain on the Web site of the New Jersey Agricultural Experiment Station/Cook College, Rutgers, The State University of New Jersey, at
Both the Outer Coastal Plain and the Inner Coastal Plain comprise the extensive, seaward-sloping Atlantic Coastal Plain. The Atlantic Coastal Plain stretches about 2,200 miles along the coast of the Eastern United States, from Massachusetts to Florida.
The Outer Coastal Plain encompasses the southeastern part of the State of New Jersey. The proposed viticultural area is roughly triangular in shape and comprises the most easterly and southerly portions of New Jersey, including most of the State's Atlantic coastline and the area known as the “Pinelands” or “Pine Barrens.” According to the petitioner, the geographical and geological features that define the boundaries of the proposed viticultural area clearly distinguish it from surrounding areas. The proposed viticultural area's proximity to the Atlantic Ocean and Delaware Bay greatly influences its climate and its geographical and geological features, such as soils and underlying sediments. These features are described in greater detail in the following section.
The Atlantic Ocean coastline, including its barrier islands, forms the proposed viticultural area's eastern boundary, and Delaware Bay forms its southern boundary. The diagonal western boundary is immediately east of a belt of low hills, called cuestas. These cuestas, which extend in a northeasterly direction from the Delaware River lowlands in the southwest to the Atlantic Highlands overlooking Raritan Bay in the northeast, separate the proposed viticultural area from the Inner Coastal Plain. The diagonal western boundary meets the eastern boundary within the city of Long Branch, New Jersey, on the Atlantic coastline.
As historical evidence for these proposed boundaries, the petitioner cited the area's long viticultural history. According to evidence that the petitioner submitted, viticulture flourished in the area as early as the mid-19th century. Egg Harbor City, New Jersey, was the center of a thriving wine industry with hundreds of acres of grapes. In 1864, Louis Renault established Renault Winery in Egg Harbor City, where he found the soils and climate to be similar to those of his native Rheims, France. Today, Renault Winery is one of the oldest, continuous winery operations in the United States. Around the same time, Dr. Thomas Welch founded the U.S. grape juice industry in Vineland, New Jersey, with a product that became known as Welch's Grape Juice. Although Prohibition devastated the area's wineries, the wine industry has made a strong comeback in recent years, due largely to the New Jersey Farm Winery Act of 1981. The number of wineries in the State jumped from 9 in 1981 to 27 today, 13 of which are in the proposed viticultural area.
As evidence of the proposed viticultural area's distinctive geology, the petitioner submitted the “Geologic Map of New Jersey.” Published by the State's Department of Environmental Protection, this map clearly shows that most of the Outer Coastal Plain is underlain by unconsolidated deposits of sand, silt, and clay of the Tertiary period and that a small coastal fringe consists of beach and estuarine deposits of the Holocene epoch. The parent material of soils in other parts of the State formed in later geologic periods. The Inner Coastal Plain, in contrast, is underlain by sand, silt, and clay of the Cretaceous period, and the northern regions of the State are underlain by sedimentary, igneous, and metamorphic rocks of still later geologic periods.
According to the petitioner, a unique feature of the proposed viticultural area is its significant aquifers, particularly the Cohansey aquifer, the largest freshwater aquifer in the mid-Atlantic region. The petitioner states that this aquifer is so important to the region's drainage and water supply that it was one reason the Pinelands National Reserve was created as a federally protected area. The Cohansey aquifer is part of the 1.93-million-acre Kirkwood-Cohansey aquifer system, the borders of which nearly correspond to those of the proposed viticultural area. The Cohansey and other aquifers, the petitioner notes, provide an abundant source of water for the proposed viticultural area's vineyards. In contrast to the Outer Coastal Plain, the adjacent Inner Coastal Plain has smaller, confined aquifers, mostly in the Potomac-Raritan-Magothy aquifer system.
On July 3, 2006, TTB published a notice of proposed rulemaking regarding the establishment of the Outer Coastal Plain viticultural area in the
After careful review of the petition, TTB finds that the evidence submitted supports the establishment of the proposed viticultural area. Therefore, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “Outer Coastal Plain” viticultural area in the State of New Jersey effective 30 days from the publication date of this document.
See the narrative boundary description of the viticultural area in the regulatory text published at the end of this final rule.
The petitioner provided the required maps, and we list them below in the regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area and its inclusion in part 9 of the TTB regulations, its name, “Outer Coastal Plain,” is recognized under 27 CFR 4.39(i)(3) as a name of viticultural significance. The text of the new regulation clarifies this point. Consequently, wine bottlers using “Outer Coastal Plain “ in a brand name, including a trademark, or in another label reference as to the origin of the wine, must ensure that the product is eligible to use the viticultural area's name as an appellation of origin. For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term identified as viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). Different rules apply if a wine has a brand name containing a viticultural area name or other viticulturally significant term that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
We certify that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name is the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment.
Jennifer Berry of the Regulations and Rulings Division drafted this document.
Wine.
27 U.S.C. 205.
(a)
(b)
(1) Wilmington, Delaware-New Jersey-Pennsylvania-Maryland, 1984, 1:100,000 scale;
(2) Hammonton, New Jersey, 1984, 1:100,000 scale;
(3) Trenton, New Jersey-Pennsylvania-New York, 1986, 1:100,000 scale;
(4) Long Branch, New Jersey, 1954, photorevised 1981, 1:24,000 scale;
(5) Atlantic City, New Jersey, 1984, 1:100,000 scale;
(6) Cape May, New Jersey, 1981, 1:100,000 scale; and
(7) Dover, Delaware-New Jersey-Maryland, 1984, 1:100,000 scale.
(c)
(1) The beginning point is on the Wilmington map at the confluence of Alloway Creek with the Delaware River (within Mad Horse Creek State Wildlife Management Area) in Salem County;
(2) From the beginning point, proceed northeasterly in a straight line to the village of Hagerville; then
(3) Continue north on an unnamed road locally known as County Road (CR) 658 to its intersection with State Route (SR) 49; then
(4) Proceed northwesterly on SR 49 to its intersection with SR 45 in the center of the town of Salem; then
(5) Proceed northeasterly on SR 45 to its intersection with SR 540 at the village of Pointers; then
(6) Proceed north on SR 540 into the village of Slapes Corner; then
(7) Proceed northeasterly on an unnamed road locally known as CR 646 to its intersection with the New Jersey Turnpike near the village of Auburn; then
(8) Proceed northeasterly on the New Jersey Turnpike for approximately 18
(9) Proceed south on SR 47 for approximately 0.5 mile to its intersection with SR 534 at the village of Gardenville Center; then
(10) Proceed southeasterly through Gardenville Center on SR 534 to its intersection with SR 544; then
(11) Proceed northeasterly on SR 544 to its intersection with SR 73 on the Hammonton map; then
(12) Proceed north-northwesterly on SR 73 to its intersection with SR 70 in Cropwell; then
(13) Proceed east on SR 70 to its intersection with U.S. 206 in Red Lion; then
(14) Proceed north on U.S. 206, onto the Trenton map, to the intersection of U.S. 206 and an unnamed road locally known as CR 537, in the village of Chambers Corner; then
(15) Proceed northeasterly on CR 537, through the village of Jobstown; then
(16) Continue northeasterly on CR 537, through the villages of Smithburg and Freehold, to its intersection with SR 18, east-northeast of Freehold; then
(17) Proceed easterly on SR 18 to its intersection with the Garden State Parkway; then
(18) Proceed north on the Garden State Parkway to its intersection with SR 36 and proceed east along SR 36 onto the Long Branch map; then
(19) Using the Long Branch map, continue east on SR 36 to where it intersects with Joline Avenue; then
(20) Proceed northeasterly on Joline Avenue to the Atlantic Ocean shoreline; then
(21) Follow the Atlantic Ocean shoreline south, encompassing all coastal islands, onto the Trenton, Hammonton, Atlantic City, and Cape May maps, to the city of Cape May; then
(22) Proceed west, then north, along the eastern bank of the Delaware River, onto the Atlantic City, Dover, and Wilmington maps to the beginning point.
Coast Guard, DHS.
Final rule; partial suspension of regulation.
Current vessel response plan regulations require the owners or operators of vessels carrying Groups I through V petroleum oil as a primary cargo to identify in their response plans a salvage company with expertise and equipment, and a company with firefighting capability that can be deployed to a port nearest to the vessel's operating area within 24 hours of notification (Groups I-IV) or a discovery of a discharge (Group V). On January 23, 2004, a notice of suspension was published in the
This extension is effective as of February 12, 2007. Termination of the suspension will be on February 12, 2009.
You may submit comments identified by Coast Guard docket number USCG-1998-3417 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)
(2)
(3)
(4)
(5)
The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building at the same address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also access this docket on the Internet at
If you have questions on this rule or the partial suspension of regulations, call Lieutenant Commander Reed Kohberger, Office of Standards Evaluation and Development, Coast Guard Headquarters, telephone 202-372-1471, or via e-mail:
Requirements for salvage and marine-firefighting resources in vessel response plans have been in place since February 5, 1993 (58 FR 7424). The existing requirements are general. The Coast Guard did not originally develop specific requirements because each salvage and marine firefighting response for an individual vessel is unique, due to the vessel's size, construction, operating area, and other variables. The Coast Guard's intent was to rely on the planholder to prudently identify contractor resources to meet their needs. The Coast Guard anticipated that the significant benefits of a quick and effective salvage and marine-firefighting response would be sufficient incentive for industry to develop salvage and marine firefighting capability parallel to the development of oil spill removal organizations.
Early in 1997, it became apparent that there was disagreement among planholders, salvage and marine-firefighting contractors, maritime associations, public agencies, and other stakeholders as to what constituted adequate salvage and marine-firefighting resources. There was also concern as to whether these resources could respond to the port nearest to the vessel's operating area within 24 hours.
On June 24, 1997, a notice of meeting was published in the
A public workshop was held on August 5, 1997, to address issues related
(1) Defining the salvage and marine firefighting capability that is necessary in the plans;
(2) Establishing how quickly these resources must be on scene; and
(3) Determining what constitutes an adequate salvage and marine-firefighting company.
On February 12, 1998, a notice of suspension was published in the
The extension of the suspension period will continue to relieve the affected industry from complying with the existing 24-hour requirements until this rulemaking project is complete, and amendments to the salvage and marine firefighting requirements become final.
Although the final rule published in 1996 was a significant regulatory action under section 3(f) of Executive Order 12866, the Office of Management and Budget does not consider this extension a significant action. As a result, it does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security.
Under the Regulatory Flexibility Act (5 U.S.C. 601
This extension will not have a significant economic impact on a substantial number of small entities because it reflects existing conditions and relieves planholders from certain original requirements. Any future regulatory action on this issue will address any economic impacts, including impacts on small entities. Therefore, the Coast Guard certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman annually evaluates the enforcement activities and rates each agency's responsiveness to small business. If you wish to comment on the enforcement actions of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This action does not provide for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have analyzed this action under E.O. 13132 and have determined that it does not have implications for federalism under that Order. Because this action extends a suspension of certain requirements, it does not preempt any state action.
This action will not result in an unfunded mandate under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538).
This action will not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this action under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We considered the environmental impact of this rule and concluded that preparation of an Environmental Impact Statement is not necessary. An Environmental Assessment and a Finding of No Significant Impact are available at
Hazardous substances, Incorporation by reference, Oil pollution, Reporting and recordkeeping requirements.
33 U.S.C. 1231, 1321(j); 46 U.S.C. 3715, 3719; sec. 2, E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation No. 0170.1.
Sections 155.110-155.130, 155.350-155.400, 155.430, 155.440, 155.470, 155.1030(j) and (k), and 155.1065(g) also issued under 33 U.S.C. 1903(b); and §§ 155.1110-155.1150 also issued 33 U.S.C. 2735.
Additional requirements for vessels carrying oil or hazardous materials appear in 46 CFR parts 30 through 36, 150, 151, and 153.
Office of the Secretary (OST), the Department of Transportation (DOT).
Final rule.
DOT is relocating the time zone boundary in Indiana to move Pulaski County, Indiana, from the Central Time Zone to the Eastern Time Zone. This action serves the convenience of commerce, the statutory standard for a time zone change, and is taken in response to a petition filed by the Pulaski County Commissioners and County Council.
The effective date of this rule is 2 a.m. CST, Sunday, March 11, 2007, which is the changeover date from standard time to daylight saving time.
Judith S. Kaleta, Office of the General Counsel, U.S. Department of Transportation, Room 10428, 400 Seventh Street, SW., Washington, DC. 20590,
Indiana is divided into 92 counties. Under Federal law, 74 Indiana counties are in the Eastern Time Zone and 18 are in the Central Time Zone. The Central Time Zone counties include seven in the northwest (Lake, Porter, La Porte, Starke, Newton, Jasper, and Pulaski) and eleven in the southwest (Knox, Daviess, Martin, Gibson, Pike, Dubois, Posey, Vanderburgh, Warrick, Spencer, and Perry). The remaining 74 counties are in the Eastern Time Zone. The entire State began to observe daylight saving time in 2006. Neighboring States observe both Eastern and Central time. Illinois and western Kentucky observe Central time, while eastern Kentucky, Ohio, and the portion of Michigan adjoining Indiana observe Eastern time.
In January 2006, DOT completed a rulemaking proceeding establishing new time zone boundaries that resulted in the current time zone observance. In that rulemaking in response to a petition from Pulaski County as well as other Indiana counties, the County was moved to the Central Time Zone. Pulaski County is bordered to the north and west by counties in the Central Time Zone and to the south and east by counties in the Eastern Time Zone. In February 2006, Pulaski County filed a Petition requesting a time zone change back to the Eastern Time Zone, and subsequently filed an Amended Petition.
In August 2006, Knox, Daviess, Martin, Pike, and Dubois Counties in Southwestern Indiana (the Southwestern Counties) filed a Joint Petition for a Time Zone Change (Joint Petition). This Final Rule addresses only Pulaski County. DOT is evaluating the Joint Petition and supplemental information from the Southwestern Counties before making a determination whether to propose a time zone change or deny the Joint Petition.
Under the Standard Time Act of 1918, as amended by the Uniform Time Act of 1966 (15 U.S.C. 260-64), the Secretary of Transportation has authority to issue regulations modifying the boundaries between time zones in the United States in order to move an area from one time zone to another. The standard in the statute for such decisions is “regard for the convenience of commerce and the existing junction points and division points of common carriers engaged in interstate or foreign commerce.”
DOT has typically used a set of procedures to address time zone issues. Under these procedures, DOT will generally begin a rulemaking proceeding to change a time zone boundary if the highest elected officials in the area provide adequate supporting data for the proposed change. We ask that the petition include, or be accompanied by, detailed information supporting the requesting party's contention that the requested change would serve the convenience of commerce. The principal standard for deciding whether to change a time zone is defined very broadly to include consideration of all the impacts upon a community of a change in its standard of time. We also ask that the supporting documentation address, at a minimum, each of the following questions in as much detail as possible.
1. From where do businesses in the community get their supplies, and to where do they ship their goods or products?
2. From where does the community receive television and radio broadcasts?
3. Where are the newspapers published that serve the community?
4. From where does the community get its bus and passenger rail services; if there is no scheduled bus or passenger rail service in the community, to where must residents go to obtain these services?
5. Where is the nearest airport; if it is a local service airport, to what major airport does it carry passengers?
6. What percentage of residents of the community work outside the community; where do these residents work?
7. What are the major elements of the community's economy; is the community's economy improving or declining; what Federal, State, or local plans, if any, are there for economic development in the community?
8. If residents leave the community for schooling, recreation, health care, or religious worship, what standard of time is observed in the places where they go for these purposes?
In addition, we consider any other information that the county or local officials believe to be relevant to the proceeding. We consider the effect on economic, cultural, social, and civic activities, and how a change in time zone would affect businesses, communication, transportation, and education.
On August 17, 2005, DOT published a notice in the
Pulaski County was one of nineteen counties that petitioned for a change. Pulaski County is located in Northwestern Indiana, 95 miles from both Chicago and Indianapolis and 60 miles from both South Bend and Lafayette. It has a population of 13,783. According to “Key Economic Development Statistics,” prepared for the Pulaski County Community Development Commission, dated January 6, 2004, “Although the agricultural heritage of Pulaski County is very strong, the fact remains that 83% of all employment is created in non-agricultural opportunities.”
The Pulaski County Commissioners submitted a petition (original petition) for a time zone change in which they enumerated reasons for a move to the Central Time Zone based on comments made during an open public meeting. The County Commissioners commented that, at that open public meeting, “There were no citizens who were in favor of Eastern. All were in favor of leaving the time alone, by not having to change time during the year. But, if we have to choose one of the two, the choice would be Central Time.” The Pulaski County Commissioners also noted the consideration of school children waiting during a late sunrise, the importance of sunlight to its farming community, television programming from South Bend and Chicago, newspapers from Indianapolis, South Bend, Logansport, and Chicago, and airports in Indianapolis and Chicago. In addition, the County Commissioners submitted annual commuting data in support of their position.
On October 31, 2005, DOT published a Notice of Proposed Rulemaking (70 FR 6228), tentatively proposing to relocate the time zone boundary in Indiana to move the time zone boundaries for several counties, but not Pulaski County. However, the notice stated that if we received additional information supporting a time zone change, we would make the change at the final rule stage of the proceeding.
On November 15, 2005, at a public hearing conducted by DOT in Logansport, Indiana, the Director of the Pulaski Community Development Commission presented information from the two major employers in the County who favored the Central Time Zone as well as from other employers. The President of the Pulaski County Council also spoke in favor of the Pulaski County petition; he noted the difficulty of being a border county and suggested that the entire state be in the same time zone. In written comments to the docket, one commenter noted that Pulaski County has regional ties to counties that are currently in the Central Time Zone or would be moved to the Central Time Zone by DOT's decision. He referred to workforce planning, economic growth, and economic development regions and said that moving Pulaski to the Central Time Zone would ensure that all counties in these regions were in the same time zone.
There were 71 comments submitted to the docket from Pulaski County. Of these comments, 41 favored the Central Time Zone, 17 favored the Eastern Time Zone, and 13 expressed interest in keeping Indiana on the same time zone, expressing no preference.
Based on the petition, comments at the hearing, and comments to the docket, Pulaski County was one of the eight counties that DOT moved from the Eastern Time Zone to the Central Time Zone under the January 2006 final rule (71 FR 3228). The final rule was to be effective on April 2, 2006.
On February 7, 2006, Pulaski County petitioned DOT for a time zone boundary change back to the Eastern Time Zone. The new petition followed DOT's final rule by only a few weeks and was submitted before the County had any experience with the new time zone changes that it had solicited. Furthermore, the new petition requested a change that was contrary to the County's original petition. The new petition stated that the original petition “was made with an understanding that our neighboring counties were favoring the same Zone of Central Time.” In addition, the new petition was also contrary to information submitted to the docket in the rulemaking proceeding. In fact, the County Commissioners represented that they did not provide accurate information in their original two-page petition. The new six-page petition provided various reasons for a time zone change, but did not provide detailed information in support of its new position or the sources for the new information submitted. Therefore, before making any determination on changing the time zone boundary for Pulaski County, in a May 22, 2006, letter, DOT reminded the County officials of the legal requirements for a time zone change and asked for an explanation of the contradictions between the original petition and the new petition. DOT also requested information, and the sources of the information, from Pulaski County to assist DOT in making a careful assessment on the appropriate time zone for the County consistent with Federal requirements.
On June 27, 2006, Pulaski County submitted an Amended Petition that included answers to the questions DOT considers in making time zone determinations and exhibits in support of the answers. The Amended Petition repeatedly stated that the information set forth in the original petition in response to DOT's time zone questions “is limited, and opinion without
In August 2006, Indiana Governor Daniels, the Indiana Economic Development Corporation, and the Indiana Department of Workforce Development submitted letters to the docket. The Governor supported the Amended Petition (as well as the Joint Petition filed by the Southwestern Counties), stating that putting more of the State on the same time zone would provide clarity on the time questions and advance economic growth. The two organizations addressed regional connections. They noted that they established their respective state regions based on their ability to deliver services. They did not establish regions based on time zones or “stream of commerce.”
On November 28, 2006, DOT published a Notice of Proposed Rulemaking (NPRM) (71 FR 68777) proposing to move the time zone boundary for Pulaski County. Based on the Amended Petition and the supporting data submitted with it, DOT found that Pulaski County provided enough information to justify proposing to change its time zone boundary from the Central Time Zone to the Eastern Time Zone.
To aid us in our consideration of whether a time zone change would be “for the convenience of commerce,” we asked for comments on the impact on commerce of a change in the time zone and whether a new time zone would improve the convenience of commerce. We requested that commenters address the impact on such things as economic, cultural, social, and civic activities and how time zone changes affect businesses, communication, transportation, and education. We specifically invited comment from neighboring Indiana counties and counties in other States that may also be impacted by changing Pulaski County's time zone boundary.
We provided 30 days for public comments in this proceeding and said that we would consider late comments to the extent practicable.
There were over 100 comments submitted in response to the NPRM, several with multiple signatures. Elected officials from Pulaski County commented to the DOT docket. Each of the three Pulaski County Commissioners filed comments as did the Winamac Town Council. There were comments from various large and small business interests, including farming, real estate, tax services, the food industry, and banks, all voicing support of either the Eastern or Central Time Zone based on operational issues and/or employee preferences. There were also comments from individuals, expressing their personal interests and preferences, as well as their views on how a time zone change would be for the convenience of commerce. While the majority of the commenters were from Pulaski County residents, there were commenters from White and Starke Counties, counties to the south and north of Pulaski County respectively, and from Seattle, Washington.
The overwhelming majority of the commenters (93%) supported changing the time zone boundary for Pulaski County back to the Eastern Time Zone. The Pulaski County Commissioners, filing individual comments, supported a change to eliminate confusion for residents and unite with neighboring counties in the Eastern Time Zone. In support of the Eastern Time Zone for the Pulaski County, the Winamac Town Council said it would benefit the surrounding counties, school corporations, commuting residents, and that it would be helpful for the local government to be on the same time as the state government in Indianapolis. Most businesses commented on how a change back to the Eastern Time Zone would allow them more time during regular business hours to be in contact with suppliers and customers who are in the Eastern Time Zone. Two businesses sent in petitions with the names and signatures of over 200 individuals who “desire to be on the same time as our surrounding counties” and “would also prefer to be on the same time as our state capitol.” Individuals said “it would be a hardship to have our county on a different time than the majority of the surrounding counties.” Sharing the views of business, individuals also noted an interest in being in the same time zone as Indianapolis. Still other commenters expressed preference for the Eastern Time Zone so that they could enjoy more daylight in the evenings for recreational activities.
The commenters who favored Central Time referred to a variety of reasons to support their position. Some mentioned current work and growing markets in the greater Chicago metropolitan area, which observes Central Time. Others noted the benefits of extra daylight in the early morning. Still others suggested Pulaski County really should try to observe Central Time, saying businesses never made a change from Eastern to Central Time, but merely adjusted hours of operation and called it “Commerce Time.” One Pulaski County resident noted that Starke County has “survived” the move to the Central Time Zone “quite well.” A Starke County resident stated that Pulaski should remain on Central Time with Starke. A few Central Time Zone supporters expressed concern that support for Central Time “has been stifled” and that “supporters of Central have been lampooned.”
There were several commenters who expressed a “One State, One Time” position, some favoring the Eastern Time Zone and others preferring the Central Time Zone. Because Pulaski County borders on counties in the both the Eastern and Central Time Zones, commenters noted the hardship that split time zones have on school children, during their academic day and after school. At least one commenter suggested dividing the State “down the middle.” DOT does not have a statewide proposal before it nor has the Indiana legislature endorsed such an approach. It is beyond the scope of this proceeding, therefore, to consider this broader change to the State's time zone boundaries.
A few commenters requested that DOT eliminate Daylight Saving Time. Federal law provides that it is up to an individual State to decide whether to observe Daylight Saving Time. This final rule does not change the 2006 decision of the Indiana legislature that the entire State observe Daylight Saving Time.
In summary, as compared to 71 commenters to the docket in the first time zone proceeding, there were 272 commenters in this proceeding. Of these comments, 255 favored the Eastern Time Zone and 15 favored the Central Time Zone. Of these commenters, a few also expressed interest in having Indiana in the same time zone. In addition, 2 commenters expressed interest in having Indiana on the same time zone, expressing no preference.
We now consider comments addressing the questions that DOT asks to decide whether a time zone change
Based upon the information submitted with the Amended Petition, the NPRM noted that it appears that the vast majority of the County's businesses and industries have their suppliers, customers and marketing connections with areas that are in the Eastern Time Zone and therefore, that moving the time zone boundary for Pulaski County to the Eastern Time Zone would serve the convenience of commerce. In proposing a change back to the Eastern Time Zone, the NRPM referred to the Amended Petition's extensive information regarding the sources of supplies and raw materials for major businesses and industries as well as the distribution points for their products and services. For example, the Joint Petition referred to the high production ranking in the state for corn and soybeans and that the inputs for these crops come from the Eastern Time Zone and that 85% of the marketing for these products occurs in the Eastern Time Zone. It also noted that agricultural fertilizer and chemical dealers marketing to the County are in the Eastern Time Zone. The markets for livestock, poultry and dairy products are in the Eastern Time Zone. The Amended Petition also noted the County's two financial institutions, both of which have branches in the Eastern and Central Time Zones. Exhibits to the Joint Petition provided data to support these claims. DOT solicited further information that would aid in determining whether a change in the time zone for Pulaski County would serve the convenience of commerce.
Several businesses, large and small, commented that the impact of being in the Central Time Zone was the loss of time to contact customers and suppliers in the Eastern Time Zone. They noted that they are losing an hour of “prime time” in the morning in reaching the Eastern Time Zone, and that they also lost contact availability around lunch time and the end of the day.
One small business with customers in White, Pulaski, Cass, and Fulton Counties noted that only Pulaski County was currently located in the Central Time Zone and it would ease problems with billing times if all its customers were in the same time zone. Another small company commented that moving to the Eastern Time Zone would benefit the company's drivers who must arrive at job sites around the state in Eastern Time Zone locations by 7:00 a.m.
Representatives of several banks, from Presidents to branch managers, submitted comments in support of the Eastern Time Zone. One noted that the majority of the bank's business came from the Eastern Time Zone and that most of its branch offices were also in the Eastern Time Zone. Placement in the Central Time Zone resulted in being “out of sync” with the rest of their organizations. It had a direct effect on inter-office computer programming, dispatching, appointments, and personnel scheduling. Another bank representative mentioned operational difficulties and problems for employees in supporting a move to the Eastern Time Zone. That bank representative also took a broader perspective and said the bank supports the Eastern Time Zone “to be with the majority of the state.”
In the NPRM, DOT noted that it was unable to determine whether the television and radio broadcasting aspect of the convenience of commerce standard supported a change in Pulaski County's time zone based on the Amended Petition. The Amended Petition provided information regarding television and radio broadcasting to cities in Pulaski County. It referred to Pulaski County's place in the South Bend/Elkhart Designated Market Area (DMA), noting that 8 of the 10 counties in the DMA were in the Eastern Time Zone. The Amended Petition maintained that having a part of the DMA in a different time zone makes it more difficult to timely report local news and that most of the news broadcasters covering local news are centered in the Eastern Time Zone. The Amended Petition also discussed cable TV service, Direct TV service, DISH Network, and the use of TV antennas. With regard to radio broadcasting, the Amended Petition provided a list of all Indiana radio stations, but did not indicate the strength of the radio signals in Pulaski County. DOT sought comment on the information submitted and requested any additional information on television and radio broadcasting in Pulaski County that would aid in determining whether a time zone change for Pulaski County would serve the convenience of commerce.
Few comments submitted to the docket in response to the NPRM addressed this aspect of the convenience of commerce standard. The owner of a Winamac business mentioned, “The bulk of our local media is in the eastern time zone” and spending “several thousand dollars a year on TV advertising.” A Pulaski County resident commented that the County is “more oriented” to the Eastern Time Zone media markets than to the Central Time Zone. A visitor to the County noted “the TV stations are mixed, the weather channel local weather is from Valpariso (central) the local radio station is in Knox (central).” A student favored the Central Time Zone because, on Eastern Time, TV shows would be on an hour later.
In the NPRM, DOT noted that it appears that moving the time zone boundary for Pulaski County to the Eastern Time Zone would serve the convenience of commerce based on the information submitted in the Amended Petition with regard to newspapers that serve the community. The Amended Petition provided data on newspaper circulation numbers in Pulaski County and discussed the circulation of Pulaski County's two family-owned newspapers. The Amended Petition also showed Pulaski County subscribers of Eastern and Central Time Zone newspapers. DOT sought comment on the information submitted and requested any additional information on newspaper circulation in Pulaski County that would aid in determining whether changing the time zone for Pulaski County would serve the convenience of commerce.
The editor of the Francesville Tribune, one of two Pulaski County-based newspapers, submitted a comment in support of the change to the Eastern Time Zone. In addition to expressing her opinion on the benefits of a time zone change for students, parents, hospitals, and patients, she stated, “A large majority of our customers and advertisers are already in the eastern time zone and therefore communication must be done on eastern hours.” The editor of the ExPress, “Pulaski County's most read and respected paper,” also submitted a comment in support of a change to the Eastern Time Zone, but did not comment upon the impact of time zone on the newspaper industry.
As noted in the NPRM, DOT was unable to determine whether the bus and passenger rail services aspect of the convenience of commerce standard supports a change in Pulaski County's time zone based on the information submitted in the Amended Petition. The Amended Petition referred to the nearest bus and rail stations for north/south and east/west in support of the Eastern Time Zone, although the Amended Petition admitted, “The use of rail or bus services by Pulaski County
Although a few commenters generally referred to transportation, no comments were submitted that referred to bus and passenger rail service.
In the NPRM, DOT stated that it was unable to determine whether the airports/airline aspect of the convenience of commerce standard supports a change in Pulaski County's time zone based on the information submitted in the Amended Petition. The Amended Petition identified three airports that could potentially serve Pulaski County residents: Indianapolis International Airport, 99 miles from the County; Chicago O'Hare, 124 miles from the County; and South Bend Regional Airport, 68 miles from the County. The Amended Petition admitted that “no reliable information is available to demonstrate the number of Pulaski County residents who are airline passengers to and from Chicago and Indianapolis,” but referred to the County's largest employer, noting that both staff and customers use the Indianapolis Airport. The Amended Petition also referred to the operations of package delivery services by FedEx and UPS, with hubs in the Eastern Time Zone. DOT sought comment on the information submitted and requested any additional information on airport and airline services in Pulaski County that would aid in determining whether changing the time zone for Pulaski County would serve the convenience of commerce.
As noted above, a few commenters generally referred to transportation. There were no comments, however, concerning airports/airline services.
Based upon the information submitted with the Amended Petition with regard to worker commuting patterns, the NPRM noted that it appears that moving the time zone boundary for Pulaski County to the Eastern Time Zone would serve the convenience of commerce. The Amended Petition stated that, according to STATS Indiana Annual Commuting Trends Profile, 2004, 77% of Pulaski County residents who work do so in the County and 13% of the workforce comes from other counties. Of those coming into the County to work, more come from the Eastern Time Zone than the Central Time Zone. The Amended Petition summed up worker commuting by stating, “Of those migrating in to work, the majority come from the Eastern Time Zone. Of those going out of the County to work, a lesser number go to the Central Time Zone than the Eastern Time Zone.” DOT solicited further information and data supporting or rebutting the information supplied by the Amended Petition and how it supports a change in the time zone for the convenience of commerce.
A few commenters referenced worker commuting patterns generally to favor a move to the Eastern Time Zone. Some were businesses discussing employee home and work locations. Others were individuals commenting on their personal experience. No commenters claimed that worker commuting patterns supported remaining in the Central Time Zone.
Based upon the information submitted with the Amended Petition with regard to economic development, the NPRM noted that it appears that moving the time zone boundary for Pulaski County to the Eastern Time Zone would serve the convenience of commerce. The Amended Petition stated, “Outside of its borders Pulaski County is not a ‘hub’ for the regional economy. It is a peripheral player.” In support of this assertion, the Amended Petition referred to a study undertaken by the Pulaski County Community Development Commission that states that the employment in the County “is highly concentrated in agriculture, manufacturing, and government.” DOT solicited further information and data supporting or rebutting the information supplied by the Amended Petition and how it supports a change in the time zone for the convenience of commerce.
In response to the NPRM, the Executive Director of the Pulaski County Community Development Commission expressed his support for the Eastern Time Zone, based on “a year of experience in working with this issue.” He noted that “the majority” of the Commission's “contacts and clients favor the Eastern Time Zone.” A member of the Pulaski County Community Development Commission expressed a different view, favoring the Central Time Zone. He noted that his company sees “growth in the markets to the greater Chicago land areas, all of which observe Central Time” and that “growth will come as a result of the continued growth of Chicago, Valparaiso, and Rensselaer.”
Several agri-businesses submitted comments favoring the Eastern Time Zone, noting the agri-business community “relies on several businesses to open early to provide goods and services to * * * local and surrounding communities. It is best for all of these related businesses to be on the same time zone to communicate with one another as needed.”
Based on the information submitted in the Amended Petition with regard to higher education and recreation and possibly health care, the NPRM noted that it appears that moving the time zone boundary for Pulaski County to the Eastern Time Zone would serve the convenience of commerce. The NPRM also noted that it is unclear whether a time zone boundary change would serve primary and secondary education. DOT sought comment on the information submitted and requested additional information on schooling as it relates to the school districts that cover Pulaski County. DOT also requested comments on any other recreational activities that would be relevant to this proceeding, on whether the home health care visits by county of residence noted on page 24 of the Amended Petition were based on a per person or per visit basis, and on a time zone change and its effect on religious worship, if any.
The Amended Petition noted that there are four school districts that cover Pulaski County, serving Pulaski County and counties in the Eastern and Central Time Zones. The Amended Petition provided detailed information on the number of students in each school district and the county of residence for the faculty. In addition, it included detailed information on the athletic programs and events scheduled in Eastern and Central Time Zone counties. With regard to higher education, the Amended Petition asserted that the employees of businesses encouraging additional schooling and high school graduates unable to afford campus life will have limited opportunities if Pulaski County were to remain in the Central Time Zone. The Amended Petition noted six of the eight colleges and universities within 50 miles are located in the Eastern Time Zone.
In response to the NPRM request for comments on the impact of a time zone change with regard to schooling, the Superintendent of Schools for the Eastern Pulaski Community School Corporation wrote favoring the Eastern Time Zone, “in the best interest of * * * students, parents, staff, and
With regard to recreation, the Amended Petition stated, “Indiana is unique in its observance of college and high school basketball as a main source of family entertainment.” The Amended Petition noted that five out of the six colleges noted for collegiate sports within 100 miles of Pulaski County are in the Eastern Time Zone. The Amended Petition also noted that with regard to professional football and basketball, there is an equal split between the Eastern and Central Time Zones.
With regard to health care, the Amended Petition provided substantial information on the activities of Pulaski Memorial Hospital, which the Amended Petition identifies as “the primary health care provider in Pulaski County” and its second largest employer. Commenting on in-patient and out-patient referrals, practitioners and specialty group physicians, and in-home health care, the Amended Petition asserted, “Pulaski Memorial Hospital activities, with one (1) exception point to the Eastern Time Zone.” It supported this assertion with detailed statistics.
In response to the NPRM's request for comments with regard to health care, the Chief Executive Officer submitted comments to the docket on behalf of the Pulaski Memorial Hospital Board of Trustees and the hospital's medical staff, supporting a change back to the Eastern Time Zone. He noted a “significant number of physicians who have a part time clinical practice in Winamac but whose main practice locations are in other towns in the Eastern Time Zone would be adversely affected” if Pulaski County were in the Central Time Zone. He further noted, “Reasonable access by the citizens of Pulaski County to high quality specialized medical and surgical care is dependent upon these physicians * * *” A family physician commented that “90% of the people and organizations both business and nonprofit that I deal with are on eastern time.” Another family physician noted his medical referrals are “almost exclusively oriented” to the Eastern Time Zone. A nurse practitioner noted that “patients are confused as to what time it is,” resulting in missed appointments. A doctor of optometry supported the Eastern Time Zone for patient scheduling purposes, patient referrals, and for buying materials and supplies. Individuals commented on their primary physicians, specialists, and dentists in the Eastern Time Zone.
The Amended Petition did not address religious worship. In response to DOT's request for comments on this aspect of the convenience of commerce standard, a few commenters mentioned time zone differences with regard to going to church services. Two religious organizations submitted comments on the impact of time zone on religious worship, supporting the Eastern Time Zone. The church leader of Grace International Ministries doing business as Church of the Heartland noted that the Church has over 400 members “involved in 5 counties with 5 campus locations.” He stated, “For the sake of scheduling services, travel and for convenience of parishioners and staff, it would greatly enhance our ministries if Pulaski were moved to the Eastern Time Zone.” The Pastor of the Fellowship Baptist Church noted its members lived in the Eastern Time Zone, with only one family living in Starke County in the Central Time Zone and the rest living in either Pulaski County or Fulton, Cass, or White Counties in the Eastern Time Zone.
Based on the information submitted in the Amended Petition with regard to regional connections, the NPRM noted that it appears that moving the time zone boundary for Pulaski County to the Eastern Time Zone would serve the convenience of commerce. The Amended Petition referred to regions established by the State of Indiana and said, “These regions are properly regarded as regions for the administrative ease of delivering governmental services and should not be relied upon as decisive evidence of what time zone best serves the commercial convenience of Pulaski County. Regardless of where Pulaski County is placed in state government regions, Pulaski County is fundamentally different as a rural county and on the periphery from the major cities that comprise the hub of these regions.” It further stated, “A rational basis can be asserted for including Pulaski County in a time zone that serves commercial convenience focusing on small rural populations with an agricultural/small manufacturing economy. This informal region would include the counties of Fulton, Pulaski, White, Jasper, and Newton.”
Regional connections are also addressed in letters from the Indiana Economic Development Corporation and the Indiana Department of Workforce Development. They noted that they established their respective regions based on their ability to deliver services. They did not establish regions based on time zones or “stream of commerce.” The data from STATS Indiana concerning employment and earnings by industry identified the source of the information as the Bureau of Economic Analysis (BEA), which produces economic statistics to help government and business decision-makers, researchers, and the American public to follow and understand the performance of the Nation's economy. Pulaski County is in BEA area 156 with other counties that are in the Eastern Time Zone (Elkhart, Fulton, Kosciusko, Lagrange, Marshall, St. Joseph Counties in Indiana and Berrien, Cass, and St. Joseph Counties in Michigan), with the exception of Starke County. Starke County, like Pulaski County, petitioned to have its time zone boundary changed to the Central Time Zone and DOT granted that petition and changed the time zone in January 2006. Starke County did not seek to change its time zone boundary back to the Eastern Time Zone. DOT sought comment on the information submitted and requested any additional information concerning regional connections that would aid in determining whether changing the time zone for Pulaski County would serve the convenience of commerce.
As noted above, the Indiana Economic Development Corporation and the Indiana Department of Workforce Development submitted letters to the docket prior to the NPRM, addressing regional connections. They noted that
Based upon the Amended Petition, information submitted with the Amended Petition, and comments submitted in response to the NPRM, DOT is relocating the time zone boundary for Pulaski County from the Central Time Zone to the Eastern Time Zone.
Pulaski County addressed all the factors we consider in these proceedings and made a convincing case that changing back to the Eastern Time Zone would serve the convenience of commerce by providing more detailed and substantiated information than the original petition and comments submitted. Written comments supported moving Pulaski County to the Eastern Time Zone. We did not receive any additional information that would persuade us to change our initial determination as proposed in the November 2006 NPRM.
DOT is unable to determine whether the transportation-related aspects (rail/bus/airports/airline services) of the convenience of commerce standard as well as the television/radio broadcast aspects of the standard support a change in Pulaski County's time zone. However, that the vast majority of the County's businesses and industries have their suppliers, customers, and marketing connections with areas that are in the Eastern Time Zone. Commenters addressing this issue make a strong case for the Eastern Time Zone. Newspapers that serve the community, worker commuting patterns, higher education, recreation, health care concerns as well as regional connections appear to favor the Eastern Time Zone.
In our experience, time zone boundary changes can be extremely disruptive to a community and, therefore, should not be made without careful consideration. Both for legal and policy reasons, the truthfulness of information submitted to the United States government is of critical importance. Indeed, it is legally required under 18 U.S.C. 1001, as we reminded the County officials in our May 22, 2006, that preceded the Amended Petition. DOT takes seriously the review of any petition seeking a change in time zone boundaries and relies upon the accuracy of data and information supporting the petition. Therefore, we have relied upon the new information and data provided by the County and other commenters and expect it to be both accurate and truthful. DOT devoted an extensive amount of time in analyzing the original petition and issuing a final rule to change the time zone boundary for Pulaski County to the Central Time Zone and to this proceeding changing the time zone boundary back to the Eastern Time Zone. We have determined that a change in the time zone boundary to the Eastern Time Zone serves the convenience of commerce, and we expect the County and its citizens to comply with this final rule.
This final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (44 FR 11040; February 26, 1979). We expect the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. The rule primarily affects the convenience of individuals in scheduling activities. By itself, it imposes no direct costs. Its impact is localized in nature.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this final rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule primarily affects individuals and their scheduling of activities. Although it would affect some small businesses, not-for-profits and, perhaps, a number of small governmental jurisdictions, we have not received comments asserting that our proposal, if adopted, would have a significant economic impact on small entities.
Therefore, I certify under 5 U.S.C. 605(b) that this final rule does not have a significant economic impact on a substantial number of small entities. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better implement it.
This final rule does not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does not have a substantial direct effect on, or sufficient federalism implications for, the States, nor would it limit the policymaking discretion of the States. Therefore, the consultation requirements of Executive Order 13132 do not apply.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) and E.O. 12875, Enhancing the Intergovernmental Partnership (58 FR 58093; October 28, 1993), govern the issuance of Federal regulations that impose unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This final rule would not impose an unfunded mandate.
This final rule does not result in a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this final rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety as defined by the Executive Order that may disproportionately affect children.
This rulemaking is not a major Federal action significantly affecting the quality of the human environment under the National Environmental Policy Act and, therefore, an environmental impact statement is not required.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Time zones.
Secs. 1-4, 40 Stat. 450, as amended; sec. 1, 41 Stat. 1446, as amended; secs. 2-7, 80 Stat. 107, as amended; 100 Stat. 764; Act of Mar. 19, 1918, as amended by the Uniform Time Act of 1966 and Pub. L. 97-449, 15 U.S.C. 260-267; Pub. L. 99-359; Pub. L. 106-564, 15 U.S.C. 263, 114 Stat. 2811; 49 CFR 1.59(a).
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure; request for comments.
NMFS is opening directed fishing for pollock in Statistical Area 610 of the Gulf of Alaska (GOA) for 48 hours. This action is necessary to fully use the A season allowance of the 2007 total allowable catch (TAC) of pollock specified for Statistical Area 610 of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), February 5, 2007, through 1200 hrs, A.l.t., February 7, 2007. Comments must be received at the following address no later than 4:30 p.m., A.l.t., February 20, 2007.
Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. Comments may be submitted by:
• Mail to: P.O. Box 21668, Juneau, AK 99802;
• Hand delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, Alaska;
• FAX to 907-586-7557;
• E-mail to
• Webform at the Federal eRulemaking Portal:
Jennifer Hogan, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
NMFS closed the directed fishery for pollock in Statistical Area 610 of the GOA under § 679.20(d)(1)(iii) on January 22, 2007 (72 FR 2462, January 19, 2007).
NMFS has determined that approximately 2,950 mt of pollock remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the A season allowance of the 2007 TAC of pollock in Statistical Area 610, NMFS is terminating the previous closure and is reopening directed fishing for pollock in Statistical Area 610 of the GOA. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached after 48 hours. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA effective 1200 hrs, A.l.t., February 7, 2007.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for pollock in Statistical Area 610 of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until February 26, 2007.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for non-Community Development Quota (CDQ) pollock with trawl gear in the Chinook Salmon Savings Areas of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2007 limit of chinook salmon caught by vessels using trawl gear while directed fishing for non-CDQ pollock in the BSAI.
Effective 12 noon, Alaska local time (A.l.t.), February 6, 2007, through 12 noon, A.l.t., April 15, 2007, and from 12 noon, A.l.t., September 1, 2007, through 12 midnight, A.l.t., December 31, 2007.
Jennifer Hogan, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2007 chinook salmon PSC limit for the pollock fishery is set at 29,000 fish (§ 679.21(e)(1)(vii). Of that limit, 7.5 percent is allocated to the groundfish CDQ program as prohibited species quota reserve (§ 679.21(e)(1)(i)). Consequently, the 2007 non-CDQ limit of chinook salmon caught by vessels using trawl gear while directed fishing for pollock in the BSAI is 26,825 animals.
In accordance with § 679.21(e)(7)(viii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2007 non-CDQ limit of chinook salmon caught by vessels using trawl gear while directed fishing for non-CDQ pollock in the BSAI has been reached. Consequently, the Regional Administrator is prohibiting directed fishing for non-CDQ pollock with trawl gear in the Chinook Salmon Savings Areas defined at Figure 8 to 50 CFR part 679.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for non-CDQ pollock with trawl gear in the Chinook Salmon Savings Areas. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 5, 2007.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule; Notice of public hearing on proposed rulemaking.
A national public hearing is being held to consider and take evidence on proposals seeking to amend the Class III and Class IV product price formulas applicable to all Federal milk marketing orders.
The hearing will convene at 9 a.m., Monday, February 26, 2007.
The hearing will be held at the Holiday Inn Select—Strongsville, 15471 Royalton Road, Strongsville, Ohio 44136, phone (440) 238-8800.
Jack Rower, Marketing Specialist, Order Formulation and Enforcement, USDA/AMS/Dairy Programs, Stop 0231—Room 2971, 1400 Independence Avenue, SW., Washington, DC 20250-0231, (202) 720-2357, e-mail address:
Persons requiring a sign language interpreter or other special accommodations should contact Paul Huber, Assistant Market Administrator, at (330) 225-4758; e-mail:
This administrative action is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.
Notice is hereby given of a public hearing to be held at the Holiday Inn Select, Strongsville, Ohio, beginning at 9 a.m. on Monday, February 26, 2007, with respect to proposed amendments to the tentative marketing agreements and to the orders regulating the handling of milk in the Northeast and other marketing areas.
The hearing is called pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR Part 900).
The purpose of the hearing is to receive evidence with respect to the economic and marketing conditions which relate to the proposed amendments, hereinafter set forth, and any appropriate modifications thereof, to the tentative marketing agreements and to the orders.
Actions under the Federal milk order program are subject to the Regulatory Flexibility Act (5 U.S.C. 601
For the purposes of determining which dairy farms are “small businesses,” the $750,000 per year criterion was used to establish a production guideline of 500,000 pounds per month. Although this guideline does not factor in additional monies that may be received by dairy producers, it should be an inclusive standard for most “small” dairy farmers. For purposes of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant will be considered a large business even if the local plant has fewer than 500 employees.
USDA has identified that during 2005 approximately 51,060 of the 54,652 dairy producers whose milk is pooled on Federal orders are small businesses. Small businesses represent about 93 percent of the dairy farmers who participate in the Federal milk order program.
On the processing side, during June 2005 there were approximately 350 fully regulated plants (of which 149 or 43 percent were small businesses) and 110 partially regulated plants (of which 50 or 45 percent were small businesses.) In addition, there were 48 producer-handlers, of which 29 were considered small businesses for the purposes of this initial regulatory flexibility analysis, who submitted reports under the Federal milk order program during this period.
The fluid use of milk represented about 45.0 percent of total Federal milk marketing order producer deliveries during January 2006. Almost 237 million Americans, approximately 80 percent of the total U.S. population reside within the geographical boundaries of the 10 Federal milk marketing areas.
In order to accomplish the goal of imposing no additional regulatory burdens on the industry, a review of the current reporting requirements was completed pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). In light of that review, it was determined that these proposed amendments would have little or no impact on reporting, record keeping, or other compliance requirements because these requirements would remain identical to those currently in effect under the Federal order program. No new or additional reporting would be necessary.
This notice does not require additional information collection that requires clearance by the OMB beyond the currently approved information collection. Information currently
No other burdens are expected to fall upon the dairy industry as a result of overlapping Federal rules. This proposed rulemaking does not duplicate, overlap, or conflict with any existing Federal rules.
To ensure that small businesses are not unduly or disproportionately burdened based on these proposed amendments consideration was given to mitigating any negative impacts. It is expected that small producers would not experience any particular disadvantage compared to larger producers as a result of the proposed amendments. Similarly, it is expected that small handlers would not experience any particular disadvantage compared to larger handlers as a result of the proposed amendments. Possible changes to the Class III and Class IV price formulas should not have any special impacts on small handler entities. All handlers manufacturing dairy products from milk classified as Class III or Class IV would remain subject to the same minimum prices regardless of the size of their operations. Minimum prices should not raise barriers regarding the ability of small handlers to compete in the marketplace.
Interested parties are invited to present evidence on the probable regulatory and information collection impact of the hearing proposals on small businesses. Also, such parties may suggest modifications of the proposal for tailoring its applicability to small businesses.
A preliminary economic analysis as well as additional detailed analysis, data and information used in developing the preliminary economic analysis are presented at the AMS Dairy Programs Web site,
The amendments to the rules proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have a retroactive effect. If adopted, the proposed amendments would not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Agricultural Marketing Agreement Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 8c(15)(A) of the Act (7 U.S.C. 608c (15)(A)), any handler subject to an order may request modification or exemption from such order by filing with the Department of Agriculture (Department) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review the Department's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.
Interested parties who wish to introduce exhibits should provide the Presiding Officer at the hearing with (6) copies of such exhibits for the Official Record. Also, it would be helpful if additional copies are available for the use of other participants at the hearing.
Milk marketing orders.
The authority citation for 7 CFR Parts 1000, 1001, 1005, 1006, 1007, 1030, 1032, 1033, 1124, 1126, and 1131 read as follows:
7 U.S.C. 601-674, and 7253.
The proposed amendments, as set forth below, have not received the approval of the Department.
This proposal seeks to amend the manufacturing allowances for Class III and Class IV product formulas, as enumerated in § 1000.50 that may include the most current plant cost survey information available. Specifically, this proposal seeks to amend § 1000.50 milk price formulas by revising the existing manufacturing allowances for butter, nonfat dry milk, cheese, and whey powder based upon evidence obtained from the hearing record. Amendments to these manufacturing allowances would directly affect the milk component values used in Federal order milk price formulas for all classes of milk.
This proposal seeks to amend the Class III and Class IV product formulas to annually update the manufacturing allowances using an annual manufacturing cost survey of cheese, whey powder, butter and nonfat dry milk plants (located outside of California.) The proposed amendments would grant authority to the Market Administrator to administer the survey, select the sample plants, and collect, audit and assemble cost information. The proposal seeks to use the annual manufacturing cost survey data to annually update manufacturing allowances at a level that is the higher of the following:
(1) Manufacturing costs would be set at a level that would allow minimum percentages of milk volume used and plants in the entire Class III and Class IV manufacturing plant population outside of California to cover their costs; or
(2) Manufacturing allowances would be set at a level that would allow minimum percentages of the milk used by Class III and Class IV manufacturing plants and the number of plants in any specific Federal order pooling at least 2 billion pounds of milk annually to cover their costs.
This proposal seeks to amend the manufacturing allowances contained in the Class III and Class IV product price formulas. Specifically, this proposal seeks to change the butter make allowance butter from 11.5 cents to 11.08 cents, change the nonfat dry milk make allowance from 14 cents to 14.10 cents, change the cheese make allowance from 16.5 cents to 16.38 cents, and change the dry whey make allowance from 15.9 cents to 14.98 cents.
1. Amend § 1000.50 by:
(a) revising paragraph (l);
(b) revising paragraph (m);
(c) revising paragraph (n)(2) and (n)(3)(i);
(d) revising paragraph (o); and
(e) revising paragraph (q)(3).
The revisions read as follows:
(l)
(m)
(n) * * *
(2) Subtract 16.38 cents from the price computed pursuant to paragraph (n)(1) of this section and multiply the result by 1.383;
(3) * * *
(i) Subtract 16.38 cents from the price computed pursuant to paragraph (n)(1) of this section and multiply the result by 1.572; and
(o)
(q) * * *
(3) An advanced butterfat price per pound, rounded to the nearest one-hundredth cent, shall be calculated by computing a weighted average of the 2 most recent U.S. average NASS AA butter survey prices announced before the 24th day of the month, subtracting 11.08 cents from this average, and multiplying the result by 1.20.
This proposal seeks to amend the Class III and Class IV product price formulas by establishing a Class III butterfat price that would be based on the Chicago Mercantile Exchange (CME) price for 40-lb. block cheese.
1. Amend § 1000.50 by revising paragraph (l) and removing paragraph (n)(3) to read as follows:
(l) Butterfat Price. The butterfat price shall be as follows:
(1) The Class IV butterfat price per pound, rounded to the nearest one-hundredth cent, shall be the CME AA Butter price reported by the Department's Dairy Market News for the month less 11.5 cents, with the result multiplied by 1.20.
(2) The Class III butterfat price per pound, rounded to the nearest one-hundredth cent shall be the AA Butter price reported by the Department's Dairy Market News for 40-lb. block cheese for the month, less 16.5 cents and multiply the result by 1.572.
This proposal seeks to amend the butterfat shrink adjustment contained in the Class III and Class IV product price formulas by adjusting the yield factor contained in the butterfat price computation from 1.20 to 1.215.
1. Amend § 1000.50 by revising paragraphs (l) and (q)(3), to read as follows:
(l)
(q) * * *
(3) An advanced butterfat price per pound, rounded to the nearest one-hundredth cent, shall be calculated by computing a weighted average of the 2 most recent U.S. average NASS AA butter survey prices announced before the 24th day of the month, subtracting 11.5 cents from this average, and multiplying the result by 1.215.
This proposal seeks to amend the Class III and Class IV product price formulas by changing the butterfat shrink adjustment and yield factor from 1.20 to 1.211, and the butterfat recovery percentage from 90 percent to 94 percent.
1. Amend § 1000.50 by:
a. revising paragraph (l);
b. revising paragraph (n)(3)(i) and (n)(3)(ii); and
c. revising paragraph (q)(3).
The revisions read as follows:
(l)
(n) * * *
(3) * * *
(i) Subtract 16.5 cents from the price computed pursuant to paragraph (n)(1) of this section and multiply the result from 1.653; and
(ii) Subtract 0.94 times the butterfat price computed pursuant to paragraph (1) of this section from the amount computed pursuant to paragraph (n)(3)(i) of this section; and
(q) * * *
(3) An advanced butterfat price per pound, rounded to the nearest one-hundredth cent, shall be calculated by computing a weighted average of the 2 most recent U.S. average NASS AA butter survey prices announced before the 24th day of the month, subtracting 11.5 cents from this average, and multiplying the result by 1.211.
This proposal seeks to amend the Class III and Class IV product price formulas by eliminating the farm-to-plant shrink and butterfat shrink adjustments to the yield factors.
This proposal seeks to amend the Class III and Class IV product price formulas by changing the nonfat solids yield factor from 0.99 to 1.02 and changing the protein price yield factors for cheese from 1.383 to 1.405 and for butter from 1.572 to 1.653.
1. Amend § 1000.50 by revising paragraphs (m), (n)(2), and (n)(3)(i) to read as follows:
(m)
(n) * * *
(2) Subtract 16.5 cents from the price computed pursuant to paragraph (n)(1) of this section and multiply the result by 1.405;
(3) * * *
(i) Subtract 16.5 cents from the price computed pursuant to paragraph (n)(1) of this section and multiply the result by 1.653;
This proposal seeks to amend the Class III and Class IV product price formulas by adjusting the protein price formula to reflect the lower value and reduced volume of butterfat recoverable as whey cream.
This proposal seeks to amend the Class III and Class IV product price formulas by reducing the protein price to reflect the lower price of whey butter.
2. Amend § 1000.50 by adding a new paragraph (n)(4), to read as follows:
(n) * * *
(4) Subtract the difference between the per pound value of AA butter and whey butter from the price computed in paragraph (n)(3) of this section.
This proposal seeks to amend the Class III and Class IV product price formulas by reducing the adjustment for cheese manufactured in 500-pound barrels contained in the protein price formula from 3 cents to 1.5 cents.
1. Amend § 1000.50 by revising paragraph (n)(1)(ii), to read as follows:
(n) * * *
(1) * * *
(ii) The U.S. average NASS survey price for 500-pound barrel cheddar cheese (38 percent moisture) reported by the Department for the month plus 1.5 cents;
This proposal seeks to amend the Class III and Class IV product price formulas by eliminating the 3-cent cost adjustment for cheese manufactured in 500-pound barrels contained in the protein price formula.
1. Amend § 1000.50 by revising paragraph (n)(1)(ii), to read as follows:
(n) * * *
(1) * * *
(ii) The U.S. average NASS survey price for 500-pound barrel cheddar cheese (38 percent moisture) reported by the Department for the month;
This proposal seeks to amend the Class III and Class IV product price formulas by removing the barrel cheese price as a cost component of the protein price formula.
1. Amend § 1000.50 by:
(a) revising paragraph (n) introductory text; and
(b) removing paragraphs (n)(1), (n)(1)(i) and (n)(1)(ii).
The revision reads as follows:
(n) The U.S. average NASS survey price for 40-lb. block cheese reported by the Department for the month;
This proposal seeks to amend the Class III and Class IV product price formulas by using a combination of the weekly NASS and CME cheese price series to determine the cheese price to be used in the Class III and Class IV product price formulas.
This proposal seeks to use a combination of the NASS price series and the CME price series to determine the price of butter, cheese, nonfat dry milk and dry whey to be used in the Class III and Class IV product price formulas. In addition, this proposal would direct NASS to survey total milk components purchased and their prices during the NASS Dairy Product Price Survey.
1. Amend § 1000.50 by:
(a) revising the introductory text;
(b) revising paragraph (l);
(c) revising paragraph (m);
(d) revising paragraph (n)(1); and
(e) revising paragraphs (q) introductory text, (q)(1)(i), (q)(2)(ii), and (q)(3).
The revisions read as follows:
Class prices per hundredweight of milk containing 3.5 percent butterfat, component prices, and advanced pricing factors shall be as follows. The prices and pricing factors described in paragraphs (a), (b), (c), (e), (f) and (q) of this section shall be based on a simple average of the most recent 2 weekly prices announced by the Chicago Mercantile Exchange (CME) as reported in Dairy Market News and the prices described in paragraph (o) of this section shall be based on a weighted average for the preceding month of the weekly prices announced by the National Agricultural Statistical Service (NASS) before the 24th day of the month. These prices shall be announced on or before the 23rd day of the month and shall apply to milk received during the following month. The prices described in paragraphs (g) through (n) and (p) of this section shall be based on a simple daily average for the preceding month of weekly prices announced by the CME as reported in Dairy Market News and the prices described in paragraph (o) of this section shall be based on a weighted average for the preceding month of the weekly prices announced by NASS. These prices shall be announced on or before the 5th day of the month and shall apply to milk received during the preceding month. The price described in paragraph (d) of this section shall be derived from the Class II skim milk price announced on or before the 23rd day of the month preceding the month to which it applies and the butterfat price announced on or before the 5th day of the month following the month to which it applies.
(l)
(m)
(n) * * *
(1) Compute a simple daily average of the amounts described in paragraphs (n)(1)(i) and (ii) of this section:
(i) The U.S. average NASS survey price for 40-lb. block cheese reported by the CME as reported in Dairy Market News for the month; and
(ii) The U.S. average NASS survey price for 500-pound barrel cheddar
(q)
(1) * * *
(i) Following the procedure set forth in paragraphs (n) and (o) of this section, but using the simple daily average of the 2 most recent weeks' CME prices for cheese and butter and the weighted average of the 2 most recent average weekly survey prices for dry whey announced before the 24th day of the month, compute a protein price and an other solids price;
(2) * * *
(i) Following the procedure set forth in paragraph (m) of this section, but using the simple daily average prices of the 2 most recent weeks CME prices as reported in Dairy Market News before the 24th day of the month, compute a nonfat solids price; and
(3) An advanced butterfat price per pound, rounded to the nearest one-hundredth cent, shall be calculated by computing a simple daily average of the 2 most recent weeks' CME AA Butter prices as reported in Dairy Market News announced before the 24th day of the month, subtracting 11.5 cents from this average, and multiplying the result by 1.20.
This proposal would amend the Class III and Class IV product price formulas by eliminating the other solids price and adding the equivalent value of dry whey to the protein price formula.
1. Amend § 1000.50 by:
(a) revising paragraph (i);
(b) adding new paragraph (n)(4);
(c) removing paragraph (o);
(d) revising paragraph (q)(1)(i); and
(e) removing paragraphs (q)(1)(ii) and (q)(1)(iv).
The additions and revisions read as follows:
(i)
(n) * * *
(4) Add to the amount computed pursuant to paragraph (n)(3) of this section the U.S. average NASS dry whey survey price reported by the Department for the month minus 19.56 cents, with the result multiplied by 1.96, rounded to the nearest one-hundredth cent.
(q) * * *
(1) * * *
(i) Following the procedure set forth in paragraph (n) of this section, but using the weighted average of the 2 most recent NASS U.S. average weekly survey prices announced before the 24th day of the month, compute a protein price;
2. Amend § 1000.53 by removing paragraph (a)(10) and redesignating paragraph (a)(11) as (a)(10).
This proposal seeks to amend the Class III and Class IV product price formulas to incorporating a monthly energy cost adjustment based on monthly changes in the producer price indices for industrial natural gas and industrial electricity as published by the Bureau of Labor Statistics.
1. Amend § 1000.50 by:
(a) revising paragraph (l);
(b) revising paragraph (m);
(c) revising paragraph (n)(2); and
(d) revising paragraphs (n)(3) introductory text, (n)(3)(i) and (o).
The revisions and additions read as follows:
(l)
(1) The U.S. average NASS AA Butter survey price reported by the Department for the month,
(2) Less a manufacturing cost allowance equal to:
(i) 12.02 cents plus,
(ii) 0.5 cents times a figure equal to the latest monthly Producer Price Index for Industrial Natural Gas reported by the Bureau of Labor Statistics minus 201.7 and divided by 201.7 plus,
(iii) 0.9 cents times a figure equal to the latest monthly Producer Price Index for Industrial Electricity reported by the Bureau of Labor Statistics minus 147.2 and divided by 147.2;
(3) With the result multiplied by 1.20.
(m)
(1) The U.S. average NASS nonfat dry milk survey price reported by the Department for the month,
(2) Less a manufacturing cost allowance equal to:
(i) 15.7 cents plus
(ii) 3.0 cents times a figure equal to the latest monthly Producer Price Index for Industrial Natural Gas reported by the Bureau of Labor Statistics minus 201.7 and divided by 201.7, plus
(iii) 1.5 cents times a figure equal to the latest monthly Producer Price Index for Industrial Electricity reported by the Bureau of Labor Statistics minus 147.2 and divided by 147.2;
(3) With the result multiplied by 0.99.
(n) * * *
(2) From the price computed pursuant to paragraph (n)(1) of this section subtract a manufacturing cost allowance equal to:
(i) 16.82 cents, plus
(ii) 0.7 cents times a figure equal to the latest monthly Producer Price Index for Industrial Natural Gas reported by the Bureau of Labor Statistics minus 201.7 and divided by 201.7 plus,
(iii) 0.8 cents times a figure equal to the latest monthly Producer Price Index for Industrial Electricity reported by the Bureau of Labor Statistics minus 147.2 and divided by 147.2;
(3) Multiply the amount computed to paragraph (n)(2) of this section by 1.383, then an amount computed as follows:
(i) Subtract the manufacturing cost allowance computed pursuant to paragraph (n)(2) of this section from the price computed pursuant to paragraph (n)(1) of this section and multiply the result by 1.572;
(o)
(1) The U.S. average NASS dry whey survey price reported by the Department for the month,
(2) Less a manufacturing cost allowance equal to:
(i) 19.56 cents plus,
(ii) 2.3 cents times a figure equal to the latest monthly Producer Price Index for Industrial Natural Gas reported by the Bureau of Labor Statistics minus 201.7 and divided by 201.7 plus,
(iii) 1.5 cents times a figure equal to the latest monthly Producer Price Index for Industrial Electricity reported by the Bureau of Labor Statistics minus 147.2 and divided by 147.2;
(3) With the result multiplied by 1.03.
This proposal seeks to incorporate a factor to account for any monthly spread between component price calculations for milk and a competitive pay price for equivalent Grade A milk.
The proposal seeks to derive a factor by using an updated version of the Department's 1994-1996 simulated analysis of a competitive pay price for Grade A milk. The proposal would modify the previously used survey to adapt it to regulatory changes, specifically related to component pricing. The proposal seeks an outcome whereby a survey of plants located in nine States, including California, as performed to develop a competitive Grade A price series, would be used to identify a spread, if any between the component and competitive values of Grade A raw milk. That spread, in whole or in part, would be incorporated into Federal order minimum prices.
For all Federal Milk Marketing Orders, make such changes as may be necessary to make the entire marketing agreements and the orders conform with any amendments thereto that may result from this hearing.
Copies of this notice of hearing and the orders may be procured from the Market Administrator of each of the aforesaid marketing areas, or from the Hearing Clerk, United States Department of Agriculture, STOP 9200—Room 1031, 1400 Independence Avenue, SW., Washington, DC 20250-9200, or may be inspected there.
Copies of the transcript of testimony taken at the hearing will not be available for distribution through the Hearing Clerk's Office. If you wish to purchase a copy, arrangements may be made with the reporter at the hearing.
From the time that a hearing notice is issued and until the issuance of a final decision in a proceeding, Department employees involved in the decision-making process are prohibited from discussing the merits of the hearing issues on an ex parte basis with any person having an interest in the proceeding. For this particular proceeding, the prohibition applies to employees in the following organizational units:
Office of the Secretary of Agriculture,
Office of the Administrator, Agricultural Marketing Service,
Office of the General Counsel,
Dairy Programs, Agricultural Marketing Service (Washington office) and the Offices of all Market Administrators.
Procedural matters are not subject to the above prohibition and may be discussed at any time.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of data availability and reopening of comment period.
A notice of proposed rulemaking (NOPR) to amend the current minimum energy conservation standards for residential furnaces and boilers was published in the
DOE will accept comments until February 26, 2007.
DOE will accept comments, data, and information regarding the proposed rule no later than the date provided in the
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Copies of public comments may be examined in the Resource Room of the Appliance Standards Office of the Building Technologies Program, Room 1J-018 in the Forrestal Building at the U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at the above telephone number for additional information about visiting the Resource Room.
the DOE's Freedom of Information Reading Room (formerly Room 1E-190 at the Forrestal Building) is no longer servicing rulemakings.
Mohammed Khan, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Forrestal Building, Mailstop EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121, (202) 586-7892,
Part B of Title III of EPCA authorizes DOE to establish energy conservation standards for various consumer products including those residential furnaces and boilers for which DOE determines that energy conservation standards would be technologically feasible and economically justified, and would result in significant energy savings. (42 U.S.C. 6295(e)) Pursuant to EPCA, DOE published a NOPR on October 6, 2006, to amend the energy conservation standards for residential furnaces and boilers. 71 FR 59204. Thereafter, DOE held a public meeting on October 30, 2006, to address the proposed rule (hereafter referred to as the October 2006 public meeting). At the October 2006 public meeting, the American Council for an Energy Efficient Economy (ACEEE) and the Appliance Standards Awareness Project (ASAP) questioned DOE's estimates of the energy savings that would likely result from regional standards for non-weatherized gas furnaces in Northern regions (cold states). (ASAP and ACEEE, No. 107.6 at pp. 153-159)
During the October 2006 public meeting, ACEEE and ASAP questioned DOE's estimates of the energy savings that would likely result from regional standards for non-weatherized gas furnaces in cold states. The estimates in the NOPR indicated that the energy savings would likely be much lower where the regions were defined using 6000 Heating Degree Days (HDD), compared to those where the regions were defined using 5000 HDD (as listed in Table VI.1.—Non-Regulatory Alternatives To Standards, 71 FR 59253).
The results presented in the NOPR for the Northern (cold states) and Southern (warm states) regions (using either the 5000 or 6000 HDD threshold) (as listed in Table VI.1.—Non-Regulatory Alternatives To Standards, 71 FR 59253) were generated by the national impact analysis (NIA) spreadsheet, which utilizes inputs generated by life-cycle cost spreadsheets constructed to separately analyze each region. DOE performed the NIA on the basis of the nine U.S. Census Bureau (cartographic) divisions, plus four large states (New York, California, Texas, and Florida), rather than on a state-by-state basis (as explained in section 10.5 of the NOPR Technical Support Document (TSD)).
Based on condensing gas furnace sales data expressed as a percentage of total gas furnace sales, as provided by the Gas Appliance Manufacturers Association (GAMA), DOE was able to derive the base case for analyzing the potential impacts of regional energy conservation standards. Then, DOE applied the state-level GAMA data to the nine U.S. Census Bureau divisions, assuming that condensing gas furnaces were installed in households solely on the basis of climate (i.e., high HDDs). In other words, within each U.S. Census Bureau division, DOE assumed that condensing gas furnaces were used primarily by households that experienced high HDDs. Thus, in the analysis, DOE assigned condensing gas furnaces to 90.4 percent of households with greater than 6000 HDD. It was this assumption that led to the relatively small energy savings estimated to result from a condensing level standard for states or regions with more than 6000 HDD (on average), and the relatively large increment of energy savings estimated to result from the same standard when applied to all states or regions with more than 5000 HDD (on average). 71 FR 59253.
Upon further examination, DOE found that its assumption, that the existing (and future) market for condensing gas furnaces (absent a standard) was likely to be concentrated in the coldest states or regions, was not consistent with the state-by-state sales data provided by GAMA. Consequently, DOE is considering alternative analyses that would reflect a distribution of condensing gas furnaces which is more consistent with the GAMA sales data.
Reliance on an alternative analysis that addresses the distribution of condensing gas furnaces will primarily impact the regulatory impact analysis. However, DOE does not anticipate that changes to the distribution of condensing gas furnaces relied upon in the NOPR analysis, will impact the determination of the appropriate energy conservation standards levels.
In view of the above, Table 1 below provides the results of one possible alternative analysis under consideration by DOE.
The alternative assumptions for the state or regional distribution of condensing furnaces in the base case are likely to have some effect on other facets of DOE's analysis, but none of these other effects are likely to be significant.
While this alternative analysis of the possible impacts of regional standards does not have any significant effects on DOE's assessment of the benefits and burdens associated with the trial standards levels for national standards, it could affect stakeholder assessments of possible alternatives to a national standard. For this reason, DOE concluded that it should present the alternative results for stakeholder consideration and comment.
At the October 2006 public meeting, ACEEE requested further clarification of the new installation cost increases applied in the NOPR analysis for oil-fired furnaces rated between 82 percent and 83 percent AFUE. (Public Meeting Transcript, No. 107.6 at p. 121)
In the Advance Notice of Public Rulemaking (ANOPR), DOE calculated the installation costs for oil-fired furnaces by assuming that upgraded Category III venting systems would be needed to prevent corrosion in 100 percent of the installations rated 84 percent AFUE and above (as explained in section 6.5.5 in the ANOPR TSD). DOE presented these installation costs at the ANOPR public meeting and received the following comments from ACEEE and GAMA.
GAMA commented that Brookhaven National Lab (BNL) had done an extensive amount of work on oil venting and that DOE should ask BNL for its information as a data resource for oil-fired furnace venting systems. (Public Meeting Transcript, No. 59.8 at p. 112.)
ACEEE commented that there are oil-fired boilers rated 86 percent AFUE and oil furnaces rated 84 percent AFUE that have significant market share. ACEEE recommended that DOE reexamine the application of Category III vents at efficiency levels rated below 84 percent AFUE, determine at which efficiency level Category III vents are required 100 percent of the time, and apply some type of phase-in of the venting systems, rather than a single-step function as DOE had done in the ANOPR analysis. (Public Meeting Transcript, No. 59.8 at p. 113.)
In response to the comments both from GAMA and ACEEE, DOE further examined oil-fired furnace venting systems and consulted with BNL on furnace installation requirements. BNL indicated that some fraction of the installations rated at 83 percent AFUE may require Category III venting systems. As a result of its consultations with BNL, DOE revised its venting-model assumptions, which characterized the rate of required Category III venting systems, from using a step function to a more linear, “phase-in” function, which assigns a Category III-requirement rate of 25 percent for oil-fired furnaces rated at 83 percent AFUE, and gradually increases the percentage of installations using Category III venting systems for oil-fired furnaces rated above 83 percent AFUE. DOE's approach is further detailed and explained in section 6.5.6 of the NOPR TSD for oil-fired furnaces. DOE used a per-installation cost adder for Category III venting systems that does not change with the AFUE level of oil-fired furnaces. It is the change in the assumed frequency of installations requiring Category III venting systems which results in the cost differences. Table 2, below, compares the DOE's ANOPR and NOPR assumptions about the fraction of the oil furnaces that require Category III venting systems at certain efficiency levels:
DOE welcomes comment on its assumptions for use of Category III venting systems for oil-fired furnaces.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of data availability and request for comments.
The Department of Energy (DOE) issued a notice of proposed rulemaking (NOPR) for liquid-immersed and medium-voltage, dry-type distribution transformers under the Energy Policy and Conservation Act (EPCA). In response to this notice, stakeholders commented that DOE's standard may prevent or render impractical the replacement of distribution transformers in certain space-constrained (e.g., vault) installations. Some stakeholders suggested that DOE's analysis of the benefits and burdens of the proposed standard should take into consideration the potential impacts of replacing transformers in space-constrained vaults. In the Notice of Proposed Rulemaking (NOPR), DOE factored weight-dependent installation costs in the analysis, but did not specifically address potential costs related to transformers installed in vaults. In today's notice, DOE requests comment on inclusion of potential costs related to size constraints of transformers installed in vaults. DOE also is considering an additional option for the final efficiency levels for liquid-immersed distribution transformers and by this notice invites public comment on this additional option.
DOE will accept written comments, data, and information in response to this notice, but no later than March 12, 2007. See section VI, “Public Participation,” of this notice for details.
Any comments submitted must identify the Notice of Data Availability for Distribution Transformers Energy Conservation Standards, and provide the docket number EE-RM/STD-00-550 and/or Regulatory Information Number (RIN) 1904-AB08. Comments may be submitted using any of the following methods:
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For detailed instructions on submitting comments and additional information on the rulemaking process, see section VI. of this document (Public Participation).
Antonio Bouza, Project Manager, Energy Conservation Standards for Distribution Transformers, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-4563,
Francine Pinto, Esq. or Chris Calamita, Esq., U.S. Department of Energy, Office of General Counsel, Mailstop GC-72, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-7432,
Part C of Title III of EPCA authorizes DOE to establish energy conservation standards for distributions transformers for which DOE determines that energy conservation standards would be technologically feasible and economically justified, and would result in significant energy savings. (42 U.S.C. 6317(a).) Pursuant to EPCA, DOE published a NOPR for liquid-immersed and medium-voltage, dry-type distribution transformers on August 4, 2006. 71 FR 44356. Together with the NOPR, DOE published a technical support document (TSD) that details each analysis DOE conducted for the rulemaking, providing specific information on its methodology and results. These documents are available at the following DOE Web site:
Some stakeholders commented that DOE had not properly considered potentially significant economic impacts of the minimum efficiency standard on space-constrained vault transformer installations. Vault transformers are distribution transformers that are used in underground distribution networks, where the transformers are installed below ground level. Often found in urban areas, these transformers are installed inside a concrete vault that is open at the top, which can be very expensive to replace or expand. As transformers are manufactured to be more energy efficient, they tend to increase in size. For this reason, stakeholders expressed concern that DOE's mandatory standard may not allow for practical replacement of transformers in certain existing space constrained installations.
In the analysis for the NOPR, DOE considered potential weight-dependent costs for installation, but DOE did not factor potential space-constraint costs of vault transformers in its analysis. DOE acknowledges the concern with space-constrained installations, and in this notice outlines for stakeholder comment analytical approaches that take into consideration potential costs related to distribution transformers installed in vaults.
This notice presents analytical approaches DOE is considering for addressing stakeholder concern on the space-constrained vault transformer issue. DOE invites stakeholders to comment on these approaches, or to propose alternatives to DOE.
In the life-cycle cost (LCC) spreadsheets DOE published with the NOPR, DOE provided external dimensions and weight information for each of the distribution transformer designs it considered in its analysis. For distribution transformers, size is very closely correlated with weight, and DOE developed weight-dependent installation costs for transformers using scaling relationships developed from RS Means installation cost data (see TSD, Chapter 7).
Although DOE's LCC spreadsheets contained external dimensional information for each transformer in the design database, DOE's NOPR did not report transformer size as a function of trial standard level (TSL). For today's notice, DOE calculated the volumes of those transformers selected by the LCC spreadsheets, as a function of TSL, for the two design lines (DLs) for which transformer vault constraints are most likely to be an issue: DL4 and DL5.
Relative to the base case for DL4, the increase in volume of the smallest transformer (i.e., “minimum”) is nine percent or less for TSL4 and lower, while the largest transformer (i.e., “maximum”) has an increase in volume relative to the base case of two percent or less for TSL4 and lower.
Relative to the base case for DL5, the increase in volume of the smallest transformer is 16 percent or less for TSL4 and lower, while the largest transformer has no increase in volume.
DOE received comments on both size and weight issues from stakeholders during both the advance notice of proposed rulemaking (ANOPR) and NOPR phases of the rulemaking. In the NOPR, DOE requested comment on “whether the Department should include space occupancy costs in the cost of transformers as a means of accounting for space constraints.” 71 FR 44407. In response to this request, commenters provided feedback both during the public meeting and in their written comments.
HVOLT commented that it endorsed the concept of using space occupancy costs in the evaluation of the impacts of space-constrained utility transformers. (Public Meeting Transcript, No. 108.6 at p. 129) The American Council for an Energy Efficient Economy (ACEEE) recommended that DOE calculate what “the average cost of a vault modification is times the percentage of applications that will trigger.” (Public Meeting Transcript, No. 108.6 at p. 130) The Edison Electric Institute (EEI) commented that space occupancy costs should be included but that such costs may be difficult to estimate and may range from 10 percent of the cost of a transformer to 100 percent of the transformer cost. (Public Meeting Transcript, No. 108.6 at p. 129-130)
In written comments after the NOPR public meeting, ACEEE commented that vault transformer costs should be treated using methods similar to the methods DOE used for distribution transformer pole costs in the NOPR analysis. (ACEEE, No. 127 at p. 6) EEI, in its written comments, emphasized the importance of the potential costs for vault transformers since this effect could create serious service reliability issues for some utilities. (EEI, No. 137 at p. 3)
In its comments and submissions in response to the ANOPR, EEI provided limited data on potential costs that could be applicable to vault transformers. (EEI, No. 63 at pp. 20-62) In its submission, EEI provided a survey in which it asked its members, as well as members of the American Public Power Association (APPA) and the National Rural Electric Cooperative Association (NRECA), the following question: “For currently existing pad-mount units in urban areas that need to be replaced, what kind of impact would a 10%, 25%, or 50% size increase have on the installed costs?” EEI received nine responses from its members, eight responses from APPA members, and one response from an NRECA member. EEI packaged all these responses and provided them to the DOE as one comment. Of these responses, a few were directly relevant to vault transformers, with most responses noting some impact but not quantifying the size of the impacts. EEI member #6 commented that “Should the transformer pad or vault lid require replacement in order to fit the larger transformer, then additional costs ranging from $500 to $1,500 will apply.” (EEI, No. 63 at p. 36) At the high end of cost estimates, APPA member #5 commented that “size would be an issue if we had to change out units to larger. Cost per location can cost approx. $15k.” (EEI, No. 63 at p. 42) Other EEI, APPA, or NRECA members did not provide specific estimates for relocation, vault replacement, or vault modification costs for vault transformers.
While DOE did include size-dependent installation costs for distribution transformers in its analysis (see NOPR TSD, Chapter 7), it did not include the additional space-constraint costs that may be borne by vault transformers. Since stakeholders presented this issue as a substantial concern in their comments on the NOPR, and since DOE agrees that it did not include these costs in the NOPR analysis, DOE intends to consider these costs in its analysis for the final rule.
In response to the stakeholder comments summarized above, DOE intends to conduct a subgroup sensitivity analysis of vault transformers to estimate space-constraint costs for the final rule. This issue is primarily of concern for liquid-immersed, three-phase distribution transformers, as this type of transformer is most often used in vault applications. Therefore DOE intends to conduct its sensitivity analysis on its two design lines that represent three-phase liquid-immersed distribution transformers, DL4 and DL5.
Information provided by Howard Industries suggests that less than 0.5 percent of transformers are used in submersible or vault applications. (Howard Industries, No. 143 at p.5) Taking that estimate of 0.5 percent of all liquid-immersed transformers are vault transformers, and assuming they are all large, three-phase units such as those in DL5, the percentage of vault transformers could account for a sizeable portion of total DL5 sales—perhaps as high as 25 percent. If the estimate of 0.5 percent of all liquid-immersed shipments were instead assumed to all be smaller three-phase transformers (i.e., DL4), the fraction of DL4 transformers affected by such space constraints is likely to be less than a few percent. Stakeholders are invited to comment on the proportion of distribution transformers sold that are installed in underground vaults, particularly with respect to the liquid-immersed, three-phase design lines, DL4 and DL5.
DOE recognizes that, where vault dimensional constraints are an issue, transformer customers have several options available to them, including:
1. Rewinding or refurbishing the existing transformer,
2. Purchasing a lower-kVA transformer and subjecting it to higher loading (or re-routing part of the load served),
3. Purchasing a transformer—constructed of higher-performing core steel and/or other materials—that is standards-compliant without being significantly larger (with added cost),
4. Rebuilding or expanding the existing vault, or
5. Petitioning DOE for waiver from energy conservation standard requirements.
DOE expects that the first two options, if available, would be cheaper than purchasing a new transformer. DOE therefore proposes to focus its analysis of the LCC impacts from dimensionally constrained vault transformers on the third and fourth options as part of an LCC subgroup analysis published with the final rule.
Considering option 3 from the above list, DOE could estimate the cost of purchasing a transformer of the same size, but constructed of higher-performing materials, such as better grades of core steel or copper conductor, by performing a size-constrained LCC calculation for both DL4 and DL5. In this calculation, DOE could assume the standards-compliant transformer in the LCC calculation was constrained at certain sizes, e.g., at the 25th and 50th percentiles of the distribution transformer volumes in the base case.
As a function of standard level, DOE could then run the LCC spreadsheets and calculate the LCC of the space-constrained transformers (at prescribed dimensional percentiles), and compare those values to the LCC from the unconstrained transformer analysis. The difference in LCC between the two cases would quantify the impact of satisfying the space constraint with better materials as a function of efficiency level for that subgroup of dimensionally constrained vault transformers.
Considering option 4 from the above list, DOE could add an additional size-dependent installation cost to the transformers included in the LCC subgroup analysis for vault transformers to account for a relatively high underground vault-space cost. DOE invites additional stakeholder input or data on what would be reasonable fixed and variable costs (e.g., per cubic foot) for DL4 and DL5. For this option, DOE would apply the vault replacement costs (with both a fixed and variable cost) when a transformer exceeds the median volume of the transformers in the base case. Given a review of cost estimation data for utility vault reconstruction, the Department currently estimates a fixed cost for vault replacement of $1740 per vault and a variable cost of $26 per cubic foot of transformer. Vault replacement may be required for the higher TSLs (TSL5 and above for both DL4 and DL5). In its standard LCC calculation, DOE based transformer selection on the manufacturer selling price. For this calculation, however, DOE proposes to assume that the customer choice of transformer design is based on total installed cost because customers are likely to be conscious of space constraint costs.
DOE intends to consider space-constrained vault transformers as part of the LCC subgroup analysis for the final rule. DOE seeks comment from stakeholders on the proportion of distribution transformers sold which are installed in underground vaults, particularly with respect to the liquid-immersed, three-phase design lines, DL4 and DL5.
In this notice, DOE outlines different approaches as to how it might account for those additional installation costs. DOE requests that stakeholders review these approaches and provide comment on the methodology and inputs. DOE intends to use the same LCC spreadsheet tools for estimating LCC impacts on vault transformers, with minor modifications, as it used to analyze the other LCC subgroups in the NOPR (see NOPR TSD, Chapter 11).
DOE notes that in the NOPR, the proposed final standard for liquid-immersed distribution transformers was based on the efficiency levels presented in TSL 2. 71 FR 44407. While the proposed standard was based on TSL 2, DOE-evaluated efficiency levels associated with a series of TSLs. Analysis of the other TSLs indicated that some of the efficiency levels set forth in TSL 3 and TSL 4 may be justifiable for specific liquid-immersed distribution transformer designs and capacities. (See Table IV.4 in 71 FR 44378 and Tables EA.3 through EA.10 in pages EA.6 through EA.13 of the Environmental Assessment Report published with the NOPR TSD) Referencing this analysis, some commenters suggested that DOE establish a final standard that incorporates higher efficiency levels from other TSLs, which preliminarily appeared to comply with the requirements of EPCA.
Based on the comments received to date, DOE is inclined to consider a final standard that is based on efficiency levels from TSL 2 and/or 3 for three-phase, liquid-immersed, distribution transformers and efficiency levels from TSL 2, 3, and/or 4 for single-phase liquid-immersed, distribution transformers. Today's notice provides
DOE will accept comments, data, and information regarding this notice no later than the date provided at the beginning of this notice. Comments, data, and information submitted to the Department's e-mail address for this rulemaking should be provided in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. Stakeholders should avoid the use of special characters or any form of encryption, and wherever possible, comments should include the electronic signature of the author. Absent an electronic signature, comments submitted electronically must be followed and authenticated by submitting a signed original paper document to the address provided at the beginning of this notice. Comments, data, and information submitted to the Department via mail or hand delivery/courier should include one signed original paper copy. No telefacsimiles (faxes) will be accepted.
According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known or available from public sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) a date after which such information might no longer be considered confidential; and (7) why disclosure of the information would be contrary to the public interest.
DOE is particularly interested in receiving comments and views of interested parties concerning:
(1) The proportion of distribution transformers sold that are installed in underground vaults, particularly with respect to the liquid-immersed, three-phase design lines, DL4 and DL5,
(2) The assumption that typical space-constrained vault transformers will be restricted to a volume that is approximately the median size of baseline transformers, and
(3) The approaches proposed in this notice to account for LCC impacts on space-constrained vault transformers, including the methodology and inputs.
(4) The possibility of having a liquid-immersed standard level that is based on efficiency levels from TSL 2 and/or 3 for three-phase and TSL 2, 3, and/or 4 for single-phase.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross reference to temporary regulation.
In the Rules and Regulations section of this issue of the
Written comments and requests for a public hearing must be received by April 10, 2007.
Send submissions to: CC:PA:LPD:PR (REG-115403-05), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-115403-05), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically, via the IRS Internet site at
Concerning the regulations, Bernard P. Harvey, (202) 622-3110; concerning submissions and to request a hearing, Kelly Banks, (202) 622-7180 (not toll-free numbers).
The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by May 10, 2007. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the functions of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collection of information;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information.
The collection of information in this proposed regulation is in § 1.181-2T(c).
The estimated annual burden per recordkeeper varies from 2 to 4 hours, depending on individual circumstances, with an estimated average of 3 hours.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
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.
The temporary regulations in the Rules and Regulations section of this issue of the
The temporary regulations in the Rules and Regulations section of this issue of the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. The proposed regulations impose a collection of information on small entities in order to demonstrate eligibilty for tax benefits under the statute, and this collection of information will require recordkeeping. This collection of information is discussed elsewhere in this preamble. However, the recordkeeping required by this collection of information does not differ significantly from the recordkeeping that a taxpayer must perform in order to determine whether the taxpayer is eligible to claim a deduction under the statute. Consequently, the economic impact on small entities resulting from the recordkeeping required under this regulation is de minimis. Accordingly, a regulatory flexibility analysis is not required. We request comment on the accuracy of this certification. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronically generated comments that are submitted timely to the IRS. The IRS and Treasury Department generally request comments on the clarity of the proposed rule and how it may be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by a person who timely submits comments. If a public hearing is scheduled, notice of the date, time, and place for the hearing will be published in the
The principal author of these regulations is Bernard P. Harvey, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
[The text of this proposed section is the same as the text of § 1.181-0T published elsewhere in this issue of the
[The text of this proposed section is the same as the text of § 1.181-1T published elsewhere in this issue of the
[The text of this proposed section is the same as the text of § 1.181-2T published elsewhere in this issue of the
[The text of this proposed section is the same as the text of § 1.181-3T published elsewhere in this issue of the
[The text of this proposed section is the same as the text of § 1.181-4T published elsewhere in this issue of the
[The text of this proposed section is the same as the text of § 1.181-5T published elsewhere in this issue of the
[The text of this proposed section is the same as the text of § 1.181-6T
Federal Emergency Management Agency, DHS.
Proposed rule.
Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations (BFEs) and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.
The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472 (202) 646-3151.
The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.
As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.
This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
This proposed rule involves no policies that have federalism implications under Executive Order 13132.
This proposed rule meets the applicable standards of Executive Order 12988.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and the Office of Management and Budget (OMB) regulations, this notice announces the Food Safety and Inspection Service's (FSIS) intention to request approval for a new information collection regarding the medical history and status of certain job applicants.
Comments on this notice must be received on or before April 10, 2007.
FSIS invites interested persons to submit comments on this notice. Comments may be submitted by any of the following methods:
•
•
•
All submissions received by mail or electronic mail must include the Agency name and docket number. All comments submitted in response to this document, as well as research and background information used by FSIS in developing this document, will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. Comments will also be posted on the Agency's Web site at
Contact John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 300 12th Street, SW., Room 112, Washington, DC 20250-3700, (202) 720-0345.
FSIS is requesting a new information collection addressing paperwork and recordkeeping requirements regarding the medical history and status of certain FSIS job applicants. Under 5 CFR 339, FSIS is requesting to collect the medical information of applicants to certain positions in the Agency to assist FSIS in making a determination of their medical fitness for duty. Applicants for certain positions in FSIS are to complete, and have their physician/medical examiner complete, FSIS Forms Certificate of Medical Examination and Report of Medical History.
FSIS has made the following estimates based upon an information collection assessment:
Copies of this information collection assessment can be obtained from John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 300 12th Street, SW., Room 112, Washington, DC 20250-3700, (202) 720-5627,(202)720-0345.
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.
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at
FSIS also will make copies of this
In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at
Forest Service, USDA.
Notice of meeting.
The Eastern Washington Cascades Provincial Advisory Committee and the Yakima Provincial Advisory Committee will meet on Friday, February 23, 2007 at the Okanogan and Wenatchee National Forest Headquarters office, 215 Melody Lane, Wenatchee, WA. This meeting will begin at 9 a.m. and continue until 4 p.m. During this meeting Provincial Advisory Committee members will discuss Roadless Area considerations and potential Wilderness recommendations in conjunction with Forest Plan Revision for the Okanogan and Wenatchee National Forests. All Eastern Washington Cascades and Yakima Province Advisory Committee meetings are open to the public.
Direct questions regarding this meeting to Paul Hart, Designated Federal
Rural Utilities Service, USDA.
Notice of availability of Final Environmental Impact Statement.
Notice is hereby given that the Rural Utilities Service (RUS), an agency which administers the U.S. Department of Agriculture's Rural Development Utilities Programs (USDA Rural Development), is issuing a Final Environmental Impact Statement (EIS) for the Highwood Generating Station (HGS). The Final EIS was prepared pursuant to the National Environmental Policy Act of 1969 (NEPA) (U.S.C. 4231 et seq.) in accordance with the Council on Environmental Quality (CEQ) regulations for implementing the procedural provisions of NEPA (40 CFR 1500—1508) and RUS regulations (7 CFR 1794). This document has been prepared jointly with the Montana Department of Environmental Quality (MDEQ), which has its own statutory mandates to analyze potential environmental impacts under the Montana Environmental Policy Act (MEPA) (75-1-101
The purpose of the EIS is to evaluate the potential environmental impacts of and alternatives to the Southern Montana Electric Transmission & Generation Cooperative, Inc. (SME) application to USDA Rural Development for a loan guarantee to construct a 250 megawatt (MW) coal-fired power plant near Great Falls, Montana. SME also proposes to construct and operate four, 1.5-MW wind turbines at the proposed project site to generate supplemental electrical power.
Written comments on this Final EIS will be accepted on or before March 12, 2007.
To send comments or for more information, contact: Richard Fristik, USDA, Rural Development, Utilities Programs, 1400 Independence Avenue, Mail Stop 1571, Room 2237, Washington, DC 20250-1571, telephone (202) 720-5093, fax (202) 720-0820, or e-mail:
A copy of the FEIS has been sent to affected Federal, state, and local government agencies and to interested parties. The document can be obtained or viewed online at
Copies of the Final EIS will be available for public review during normal business hours at the following locations:
Montana State Library System, Attn: Roberta Gebhardt, P.O. Box 201800, Helena, MT 59620-1800, (406) 444-5393.
University of Montana at Missoula, 32 Campus Drive 59801, Mansfield Library, Missoula, MT 59812, (406) 243-6866.
Missoula Public Library, 301 East Main, Missoula, MT 59802-4799, (406) 721-2665, FAX: (406) 728-5900.
Montana State University Libraries, P.O. Box 173320, Bozeman, MT 59717-3320, Phone: (406) 994-3119, Fax: (406) 994-2851.
MSU-Northern Library, P.O. Box 7751, Havre, MT 59501-7751.
Great Falls Public Library, 301 2nd Ave. North, Great Falls MT 59401-2593, (406) 453-0349.
Havre-Hill County Library, 402 3rd St., Havre, MT 59501, (406) 265-2123.
Parmly Billings Library, 510 N 28th St. #1, Billings, MT 59101, (406) 657-3079.
Belt Public Library, 404 Millard Street, Belt, MT 59411-0467.
Chouteau County Library, 1518 Main, Fort Benton, MT 59442.
Branch of Chouteau County Library, Box 1247, Big Sandy, MT 59520.
Branch of Chouteau County Library, Box 316, Geraldine, MT 59446.
Stone Child College Library, RR 1 Box 1082, Box Elder, MT 59521.
Wedsworth Memorial Library, 9-
Fort Belknap College Library and Tribal Archives, P.O. Box 159, Harlem, MT 59526.
Harlem Public Library, 37 First Ave. SE., Harlem, MT 59526.
Choteau-Teton County Library, 17 Main Ave. North, Choteau, MT 59422.
Copies of the Final EIS may also be obtained by contacting either Richard Fristik at 202-720-5093 (e-mail:
Presently, SME meets all of its power requirements for its cooperative member systems by purchasing power from two Federal power suppliers—the Bonneville Power Administration (BPA) and the Western Area Power Administration. The major supplier (BPA) will begin to phase out its sales of power to SME in 2008 and terminate them entirely by 2011, thus the need exists to fulfill future requirements by other means. More information on the purpose and need for the proposal is in Chapter 1 of the FEIS.
On September 24, 2004, USDA Rural Development published the Notice of Intent to prepare an EIS for the Highwood Generating Station in the
Alternatives evaluated in the FEIS include: Power purchase agreements; energy conservation and efficiency; renewable non-combustible energy sources (wind energy, solar energy, hydroelectricity, geothermal energy); renewable combustible energy sources (biomass, biogas, municipal solid waste); non-renewable combustible energy sources (natural gas combined cycle, microturbines, pulverized coal, circulating fluidized bed coal, integrated gasification combined cycle coal, oil), and combinations of renewable and non-renewable sources. Site screening evaluated 4 main potential locations statewide, while site selection examined 6 alternative sites in the preferred location near Great Falls. Several same-site alternatives for project components were also studied, including using different railroad spur alignments, methods of obtaining potable water, discharging wastewater, and disposing of ash, respectively.
Alternatives assessed in detail include the: (1) No Action Alternative; (2) Proposed Action (construction/operation of the HGS at the Salem site eight miles east of Great Falls, and (3) Industrial Park Site (construction/operation of the power plant, but no wind generation, at an alternate site in a designated industrial park just north of Great Falls). The No Action Alternative avoids most direct adverse environmental effects, but potentially entails a number of indirect and cumulative impacts associated with other generation sources from which SME would have to purchase power if unable to generate its own. In most respects, with the exception of cultural and historic resources, impacts from the Proposed Action (2) and Alternative Site (3) are similar, though the proximity of the Alternative Site to greater numbers of residents intensifies some of these impacts, such as traffic, noise, and air quality; nonetheless, these impacts would not likely be significant. Potential air quality impacts at both locations would be reduced to non-significant levels through the application of CFB technology and other pollution controls. The proposed plant would comply with Montana's air quality standards, including its recent mercury rule. The agency's preferred alternative is Alternative 2.
The FEIS concludes that the Proposed Action would have significant adverse impacts on historic and visual resources, because it is located on and adjacent to the Great Falls Portage National Historic Landmark (NHL). In accordance with Section 106 of the National Historic Preservation Act, consultation was initiated with a number of consulting parties and a consulting party meeting was held in Great Falls on October 5 to discuss RUS' adverse effect finding. The results of those discussions are integrated in the FEIS, including a draft Memorandum of Agreement (MOA) that proposes on-site and off-site mitigation measures to avoid and minimize these effects. Potentially significant impacts to traffic during construction were also identified with Alternative 2; a mitigation plan would be developed in cooperation with the Montana Department of Transportation to minimize or mitigate these impacts. Other adverse but non-significant impacts of the Proposed Action include those on soils, water, air, biological resources, noise, transportation, farmland and land use, human health and safety, and environmental justice. The Proposed Action would result in moderately beneficial socioeconomic impacts, including increased employment opportunities, total purchases of goods and services, and an increase in the tax base.
Construction and operation of the proposed power plant at the Alternative Industrial Park Site would result in broadly similar impacts to those of the Proposed Action, but with some important distinctions. No wind turbines are proposed for the Industrial Park site. Due to space limitations at the Industrial Park site, ash from coal combustion would be hauled off-site to a licensed landfill for disposal. Adverse but non-significant impacts of the Alternative Site include those on soils, water, air, biological resources, noise, cultural and historic resources, visual resources, transportation, farmland and land use, human health and safety, and environmental justice. Building and operating the proposed SME power plant at the Alternative Site would produce moderately beneficial socioeconomic impacts, including increased employment opportunities, total purchases of goods and services, and an increase in the tax base.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Addition to Procurement List.
The Committee is proposing to add to the Procurement List a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in the notice for each product or service will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenter's should identify the statement(s) underlying the certification on which they are providing additional information.
The following service is proposed for addition to Procurement List for production by the nonprofit agencies listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from Procurement List.
This action from the Procurement List products and a service previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
March 11, 2007.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Sheryl D. Kennerly, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On December 15, 2006, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (70 FR 75496-75497) of proposed deletions to the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and service are deleted from the Procurement List:
Department of Commerce.
Final notice to amend a Privacy Act System of Records: COMMERCE/DEPARTMENT-18, “Employees' Personnel Files Not Covered by Notices of Other Agencies.”
The Department of Commerce (Commerce) publishes this notice to announce the amendment of a Privacy Act System of Records entitled COMMERCE/DEPARTMENT-18, “Employees' Personnel Files Not Covered by Notices of Other Agencies.”
The system of records becomes effective on February 9, 2007.
For a copy of the system of records please mail requests to Phyllis Alexander, Office of Human Resources Management, Room 5001, 1401 Constitution Avenue, NW., Washington, DC 20230, 202-482-4807.
Phyllis Alexander, Office of Human Resources Management, Room 5001, 1401 Constitution Avenue, NW., Washington, DC 20230, 202-482-4807.
On December 11, 2006, the Commerce Department published and requested comments on a proposed amended Privacy Act System of Records entitled COMMERCE/DEPARTMENT-18, “Employees' Personnel Files Not Covered by Notices of Other Agencies.” No comments were received in response to the request for comments. By this notice, the Department is adopting the proposed system as final without changes effective February 9, 2007.
Pursuant to its authority under the Foreign-Trade Zones Act, of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Whereas, the Foreign-Trade Zones Act provides for ”...the establishment... of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;
Whereas, the Board's regulations (15 CFR Part 400) provide for the establishment of special-purpose subzones when existing zone facilities cannot serve the specific use involved, and when the activity results in a significant public benefit and is in the public interest;
Whereas, the County of Orange, New York, grantee of Foreign-Trade Zone 37, has made application to the Board for authority to establish a special-purpose subzone at the photomask blanks manufacturing and warehousing facilities of Schott Lithotec USA Corp, located in Poughkeepsie, New York (FTZ Docket 20-2006, filed 5/24/06);
Whereas, notice inviting public comment was given in the
Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied, and that approval of the application is in the public interest;
Now, Therefore, the Board hereby grants authority for subzone status for activity related to photomask blank manufacturing at the facilities of Schott Lithotec USA Corp, located in Poughkeepsie, New York (Subzone 37C), as described in the application and
Signed at Washington, DC, this 22
Attest:
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Northeast Ohio Trade & Economic Consortium (NEOTEC), grantee of FTZ 181, requesting authority to reorganize Site 2 in Trumbull and Mahoning Counties, Ohio, within the Cleveland Customs port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR Part 400). It was formally filed on January 22, 2007.
FTZ 181 was approved by the Board on December 23, 1991 (Board Order 546, 57 FR 41; 1/2/92). On March 13, 1998, the grant of authority was reissued to NEOTEC (Board Order 965, 63 FR 13837; 3/23/98). The zone was expanded in 1997 (Board Order 902, 62 FR 36044; 7/3/97), 1998 (Board Order 968, 63 FR 16962; 4/7/98), 1999 (Board Order 1053, 64 FR 51291; 9/22/99), 2002 (Board Order 1260, 67 FR 71933; 12/3/02), 2004 (Board Order 1334, 69 FR 30281; 5/27/04), and twice in 2006 (Board Orders 1479, 71 FR 59072; 10/6/06 and 1493, 71 FR 71507-71508; 12/11/06). FTZ 181 currently consists of nine sites in the northeast, Ohio area covering Summit, Trumbull, Mahoning, Columbiana, Stark, Richland, Ashtabula, Portage, Medina and Wayne Counties.
The applicant is now requesting authority to reorganize Site 2 by deleting 378 acres from the Youngstown-Warren Regional Airport in Trumbull County and adding 50 acres within the 106-acre Warren Commerce Park, located at 655 North River Road, NW, Warren, Trumbull County, and 200 acres within the 244-acre Allied Industrial Park, located at 2100 Poland Avenue, Youngstown, Mahoning County, Ohio.
Leedsworld, Inc, will be the anchor tenant for the Warren Commerce Park, which is owned by Mahoning Valley Economic Development Corporation and River Road Investments Inc. Allied Industrial Park, owned by Allied Consolidated Industries (ACI), will serve ACI's headquarters and seven of its umbrella companies.
No specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by case basis.
In accordance with the Board's regulations, a member of the FTZ Staff has been designated examiner to investigate the application and report to the Board.
Public comment on the application is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is [60 days from date of publication]. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to [75 days from date of publication]).
A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations:
U.S. Department of Commerce, Export Assistance Center, 600 Superior Avenue, East, Suite 700,Cleveland, Ohio, 44114-2>
Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce, Room 2814B, 1401 Constitution Avenue, NW, Washington, D.C., 20230-2>
Import Administration, International Trade Administration, Department of Commerce.
February 9, 2007.
Michael Holton or Paul Walker, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1324 or (202) 482-0413, respectively.
On July 13, 2006, the Department of Commerce (“Department”) initiated the antidumping duty investigation of certain polyester staple fiber from the People's Republic of China.
Section 735(a)(2) of the Tariff Act of 1930 (“the Act”) provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by petitioner. In addition, the Department's regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a request for extension of provisional measures from a four-month period to not more than six months.
On January 10, 2007, several respondents
This notice is issued and published pursuant to sections 777(i) of the Act and 19 CFR 351.205(f)(1).
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on wooden bedroom furniture from the People's Republic of China (“PRC”). The period of review (“POR”) for this administrative review is June 24, 2004, through December 31, 2005. This administrative review covers multiple producers/exporters of the subject merchandise, five of which are being individually investigated as mandatory respondents. The Department is also conducting new shipper reviews for two exporters/producers. The POR for the new shipper reviews is also June 24, 2004, through December 31, 2005.
We preliminarily determine that all five mandatory respondents in the administrative review made sales in the United States at prices below normal value. With respect to the remaining respondents in the administrative review (herein after collectively referred to as the Separate Rate Applicants), we preliminarily determine that 39 entities have provided sufficient evidence that they are separate from the state-controlled entity, and we have established a weighted-average margin based on the rates we have calculated for the five mandatory respondents, excluding any rates that are zero,
We invite interested parties to comment on these preliminary results. Parties who submit comments are requested to submit with each argument a statement of the issue and a brief summary of the argument. We intend to issue the final results of this review no later than 120 days from the date of publication of this notice.
February 9, 2007.
Eugene Degnan or Robert Bolling, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0414 and (202) 482-3434, respectively.
On January 4, 2005, the Department published in the
On March 21, 2006, the Furniture Sub-Chamber of the China Chamber of Commerce for Import & Export of Light Industrial Products and Arts-Crafts (“Furniture Subchamber of “CCCLA”) filed a Market-Oriented Industry request with the Department. On April 3, 2006, the Department issued the Furniture Subchamber of CCCLA a letter explaining that the submission had not been properly served on all interested parties, and that for the Department to retain the submission on the record of this administrative review, the Furniture Subchamber of CCCLA would have to comply with the following requirements: serve all interested parties with its March 21, 2006 submission and certify to the Department that it had served all interested parties. We informed the Furniture Subchamber of CCCLA that it must comply with our instructions by no later than April 14, 2006. On May 16, 2006, we rejected the Furniture Subchamber of CCCLA's March 21, 2006, submission because it had not complied with the requirements stipulated above, (
On May 12, 2006, Petitioners
On June 8, 2006, American Signature, Inc. (“ASI”) requested that the Department issue instructions to CBP to refund “excess” antidumping duty deposits made by ASI due to ministerial errors from the original investigation pursuant to 19 U.S.C. 1520. On June 16, 2006, Pacific Marketing International (“PMI”) stated that it supports ASI's comments and requested that the Department direct CBP to liquidate all entries from the supplier identified in ASI's June 8, 2006, submission according to “correct” final rates rather than the “incorrect” final rates. On June 21, 2006, Petitioners submitted comments with respect to ASI and PMI's request and stated that their requests are without merit and that the Department's regulations provide for the automatic assessment of duties at the cash deposit rate “at the time of entry” if no administrative review is requested. Petitioners argue that because neither party requested a review of the exporter, the Department should liquidate their entries at the cash deposit rate in effect at the time of entry, pursuant to 19 CFR 351.212(c), which stipulates that if no review is requested the Department is to instruct CBP to assess antidumping
Because of the large number of companies subject to this review, on July 3, 2006, the Department issued its respondent-selection memorandum, selecting the following five companies as mandatory respondents in this administrative review: Fine Furniture; Foshan Guanqiu Furniture Co., Ltd. (“Foshan Guanqiu”); Fujian Lianfu Forestry Co./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd. (“Dare Group”); Shanghai Aosen Furniture Co., Ltd. (“Shanghai Aosen”); and Starcorp.
On July 28, 2006, the Department issued its questionnaire to Fine Furniture, Foshan Guanqiu, the Dare Group, Shanghai Aosen, and Starcorp. On August 30, 2006, all mandatory respondents requested an extension of time to respond to the Department's questionnaire. On August 30, 2006 the Department extended the deadline for submission of the Sections C and D questionnaire response until September 22, 2006.
On July 26, 2006, counsel for Foshan Guanqiu met with Department officials to discuss modifying the requirement to report factors of production (“FOP”) for three of Foshan Guanqiu's suppliers of subject merchandise.
In August 2006, pursuant to 19 CFR 351.214(j)(3), the two new shipper respondents (
On August 2, 2006, Huanghouse informed the Department that it would no longer participate in the new shipper review of Huanghouse.
On April 3, 2006, Senyuan withdrew its request for a new shipper review, within the 60-day time limit for withdrawal. No other party requested a review of Senyuan for this time period. Accordingly, we rescinded this new shipper review.
On September 12, 2006, the Department issued a letter to interested parties seeking comments on surrogate country selection and surrogate values. On October 3, 2006, Petitioners and the Dare Group submitted comments regarding the selection of a surrogate country. Also, on October 24, 2006, the Dare Group, Fine Furniture, Foshan Guanqiu, Starcorp, and Petitioners submitted surrogate value information.
On September 28, 2006, we extended the deadline for the issuance of the preliminary results of the administrative review and new shipper reviews until January 31, 2007.
On November 3, 2006, Petitioners submitted comments responding to the respondent's surrogate value information. Also, on November 3, 2006, the Dare Group, Fine Furniture, Foshan Guanqiu, Shanghai Aosen, and Starcorp responded to Petitioners' October 24, 2006, surrogate value submission. On November 13, 2006, the Dare Group provided additional surrogate value information and responded to Petitioners' November 3, 2006, submission. On November 22, 2006, Petitioners responded to the Dare Group's November 13, 2006, submission. On December 4, 2006, the Dare Group responded to Petitioners' November 22, 2006, submission. On December 22, 2006, Petitioners responded to the Dare Group's December 4, 2006, submission.
On December 11, 2006, the Department requested that Fine Furniture, Foshan Guanqiu, Shanghai Aosen, and Starcorp provide additional surrogate value information. Between
On January 9, 2007, First Wood withdrew its request for a new shipper review and requested that the review be terminated. See
As described above, the Department issued its antidumping questionnaire to the five mandatory respondents. Upon receipt of the various responses, the Petitioners provided comments and the Department issued supplemental questionnaires. Because the chronology of this stage of the administrative review is extensive and varies by respondent, the Department has separated this portion of the background section by company.
On August 7, 2006, the Dare Group requested a one-week extension for the submission of its Section A response. On August 25, 2006, the Dare Group submitted its Section A response to the Department's original questionnaire. On August 29, 2006, the Dare Group requested a 24-day extension for the submission of its Sections C and D response to the Department's original questionnaire. On August 30, 2006, the Department granted the Dare Group a 17-day extension. On September 12, 2006, the Dare Group requested an additional two-week extension for the submission of its Section C and D response. On September 19, 2006, the Department granted the Dare Group a further one-week extension. On September 21, 2006, the Department issued a supplemental Section A questionnaire to the Dare Group. On September 27, 2006, the Dare Group requested an additional one-day extension for the submission of its Sections C and D response, which the Department granted on September 28, 2006. On October 2, 2006, the Dare Group submitted its Section C and D response to the Department's original questionnaire. Also, on October 2, 2006, the Dare Group requested a two-week extension for the submission of its supplemental Section A response. On October 5, 2006, the Dare Group requested an additional four-day extension for the submission of its supplemental Section A response, which the Department granted. On October 16, 2006, the Dare Group submitted its supplemental Section A response. On November 22, 2006, the Department issued a supplemental Sections C and D questionnaire. On November 30, 2006, the Dare Group requested a three-week extension for the submission of its supplemental Sections C and D response. On December 4, 2006, the Department granted the Dare Group a 12-day extension for the submission of its supplemental Sections C and D response. On December 18, 2006, the Dare Group submitted its supplemental Sections C and D response. On January 9, 2007, the Department issued a second supplemental Sections A, C and D questionnaire. On January 18, 2007, the Dare Group requested a one-day extension for the submission of its supplemental Sections A, C and D response, which the Department granted. On January 22, 2007, the Dare Group submitted its supplemental Sections A, C and D response. On September 5, October 17, November 13, and December 22, 2006, Petitioners submitted comments on the Dare Group's questionnaire and supplemental questionnaire responses.
On August 25, 2006, Fine Furniture submitted its Section A response to the Department's original questionnaire. On September 15, 2006, Fine Furniture requested an extension of time to respond to Sections C and D of the Department's original questionnaire. On September 19, 2006, the Department extended the deadline for submission of Fine Furniture's Sections C and D responses until October 2, 2006. On September 21, 2006, the Department issued a supplemental Section A questionnaire to Fine Furniture. On October 2, 2006, Fine Furniture requested an extension of time to respond to the supplemental Section A questionnaire. Also, on October 2, 2006, Fine Furniture submitted its responses to Sections C and D of the questionnaire. On October 4, 2006, the Department extended the deadline for submission of Fine Furniture's supplemental Section A response until October 16, 2006. On November 9, 2006, the Department issued a supplemental Section D questionnaire to Fine Furniture. On November 15, 2006, Fine Furniture requested an extension of time to respond to the supplemental Section D questionnaire. On November 20, 2006, the Department extended the deadline for submission of Fine Furniture's supplemental Section D response until December 4, 2006. On November 28, 2006, Fine Furniture requested an additional extension of time to respond to the supplemental Section D questionnaire. On November 30, 2006, the Department extended the deadline for submission of Fine Furniture's supplemental Section D response until December 6, 2006. Also, on November 30, 2006, the Department issued a supplemental Section C questionnaire to Fine Furniture. On December 6, 2006, Fine Furniture submitted its supplemental Section D response. Also, on December 11, 2006, Fine Furniture requested an additional extension of time to respond to the Section C supplemental questionnaire. On December 14, 2006, the Department extended the deadline for submission of Fine Furniture's supplemental Section C response until December 20, 2006. On December 20, 2006, Fine Furniture submitted its supplemental Section C response. On December 27, 2006, the Department issued its second supplemental Section D questionnaire. On January 3, 2007, Fine Furniture requested an extension of time to respond to the second supplemental Section D questionnaire. Also, on January 3, 2007, the Department issued its second supplemental Section C questionnaire. On January 4, 2007, the Department extended the deadline for submission of Fine Furniture's second supplemental Section D response until January 12, 2007. On January 12, 2007, Fine Furniture requested an extension of time to respond to the second supplemental Section C and D questionnaire. On January 16, 2007, Fine Furniture submitted its responses to the second supplemental Sections C and D questionnaires. On September 5, October 13, November 21, and December 19 and 22, 2006, Petitioners submitted comments on Fine Furniture's questionnaire and supplemental questionnaire responses.
On August 25, 2006, Foshan Guanqiu submitted its Section A response to the Department's original questionnaire. On October 2, 2006, Foshan Guanqiu submitted its Sections C and D response to the Department's original questionnaire. The Department issued a supplemental Section A questionnaire to Foshan Guanqiu on October 4, 2006, to which Foshan Guanqiu responded on October 25, 2006. On November 8, 2006, the Department issued a supplemental Sections C and D questionnaire to Foshan Guanqiu, to which Foshan Guanqiu responded on November 30, 2006. The Department issued a supplemental questionnaire on surrogate values submitted by Foshan Guanqiu on December 11, 2006, and received a response on December 21, 2006. The Department issued a second supplemental Section C and D questionnaire to Foshan Guanqiu on
On August 28, 2006, Shanghai Aosen submitted its Section A response to the Department's original questionnaire. On September 15, 2006, Shanghai Aosen requested a two-week extension to respond to Section D of the Department's original questionnaire. On September 19, 2006, the Department granted the extension for Shanghai Aosen to file its Section D response by September 29, 2006. On September 25, 2006, Shanghai Aosen submitted its Section C response to the Department's original questionnaire.
On October 2, 2006, Shanghai Aosen submitted its Section D response to the Department's original questionnaire. On October 3, 2006, the Department issued a supplemental Section A questionnaire to Shanghai Aosen. On October 5, 2006, Shanghai Aosen requested a one-week extension to respond to the supplemental Section A questionnaire. On October 10, 2006, the Department granted a full extension until October 18, 2006. On October 18, 2006, Shanghai Aosen submitted its supplemental Section A response.
On November 8, 2006, the Department issued a supplemental Section C questionnaire to Shanghai Aosen. On November 16, 2006, Shanghai Aosen requested a two-week extension to respond to the supplemental Section C questionnaire. The Department granted a partial extension on November 21, 2006, and instructed Shanghai Aosen to respond to the supplemental Section C questionnaire by November 29, 2006. On November 28, 2006, the Department issued a supplemental Section D questionnaire to Shanghai Aosen. On November 30, Shanghai Aosen submitted its supplemental Section C response.
On December 7, 2006, Shanghai Aosen requested a 17-day extension to respond to the supplemental Section D questionnaire. The Department granted a partial extension until December 19, 2006. On December 12, 2006, the Department issued a supplemental Section D questionnaire specific to Shanghai Aosen's FOPs to be due by December 19, 2006. On December 18, 2006, Shanghai Aosen requested a three-day extension to respond to this supplemental Section D questionnaire. The Department granted a partial extension until December 21, 2006. On December 20, 2006, Shanghai Aosen submitted its supplemental Section D response. On December 21, 2006, Shanghai Aosen submitted its response to the supplemental Section D questionnaire specific to its FOPs.
On January 5, 2007, the Department issued a second supplemental Sections C and D questionnaire. On January 22, 2007, Shanghai Aosen submitted its second supplemental Sections C and D response. On September 6, October 23, November 13, and December 13 and 27, 2006, and January 18, 2007, Petitioners submitted comments on Shanghai Aosen's questionnaire and supplemental questionnaire responses.
On August 25, 2006, Starcorp submitted its Section A questionnaire response. On October 2, 2006, Starcorp submitted its Sections C and D questionnaire responses. The Department issued a supplemental Section A questionnaire to Starcorp on October 3, 2006, to which Starcorp responded on October 27, 2006. The Department issued a supplemental Section D questionnaire to Starcorp on November 3, 2006, to which Starcorp responded on November 29, 2005. On November 21, 2006, the Department issued a supplemental Section C questionnaire and second supplemental Sections A and D questionnaires to Starcorp, to which Starcorp responded on December 12, 2006. On December 11, 2006, the Department issued a third supplemental Section D questionnaire to Starcorp, to which Starcorp responded on December 18, 2006. On December 20, 2006, the Department issued a fourth supplemental Section D questionnaire to Starcorp, to which Starcorp responded on January 8, 2007. On December 28, 2006, the Department issued a second supplemental Section C questionnaire, to which Starcorp responded on January 8, 2007. Further, on January 12, 2007, the Department issued a third supplemental Section C questionnaire, to which Starcorp responded on January 17, 2007. On September 6, October 16, November 9, and December 13, 19, and 21, 2006, and January 12, 2007, Petitioners submitted comments on Starcorp's questionnaire and supplemental questionnaire responses. Finally, on December 18, 2006, and January 19, 22, and 26, 2007, Starcorp submitted responses to Petitioners' comments of December 7 and 12, 2006, and January 12 and 23, 2007, respectively.
On March 14, 2006, the Department issued its standard antidumping questionnaire to First Wood. First Wood submitted its Section A response on April 19, 2006, and its Sections C and D responses on May 11, 2006. The Department issued a supplemental Sections A, C, and D questionnaire to First Wood on July 14, 2006, to which First Wood responded on August 17, 2006. The Department issued a second supplemental Sections A, C, and D questionnaire to First Wood on December 7, 2006, to which First Wood responded on January 3, 2006. Petitioners provided no comments.
The POR is June 24, 2004, through December 31, 2005.
The product covered is wooden bedroom furniture. Wooden bedroom furniture is generally, but not exclusively, designed, manufactured, and offered for sale in coordinated groups, or bedrooms, in which all of the individual pieces are of approximately the same style and approximately the same material and/or finish. The subject merchandise is made substantially of wood products, including both solid wood and also engineered wood products made from wood particles, fibers, or other wooden materials such as plywood, oriented strand board, particle board, and fiberboard, with or without wood veneers, wood overlays, or laminates, with or without non-wood components or trim such as metal, marble, leather, glass, plastic, or other resins, and whether or not assembled, completed, or finished.
The subject merchandise includes the following items: (1) wooden beds such as loft beds, bunk beds, and other beds; (2) wooden headboards for beds (whether stand-alone or attached to side rails), wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds; (3) night tables, night stands, dressers, commodes, bureaus, mule chests, gentlemen's chests, bachelor's chests, lingerie chests, wardrobes, vanities, chessers, chifforobes, and wardrobe-type cabinets; (4) dressers with framed glass mirrors that are attached to, incorporated in, sit on, or hang over the dresser; (5) chests-on-chests
The scope of the order excludes the following items: (1) seats, chairs, benches, couches, sofas, sofa beds, stools, and other seating furniture; (2) mattresses, mattress supports (including box springs), infant cribs, water beds, and futon frames; (3) office furniture, such as desks, stand-up desks, computer cabinets, filing cabinets, credenzas, and bookcases; (4) dining room or kitchen furniture such as dining tables, chairs, servers, sideboards, buffets, corner cabinets, china cabinets, and china hutches; (5) other non-bedroom furniture, such as television cabinets, cocktail tables, end tables, occasional tables, wall systems, book cases, and entertainment systems; (6) bedroom furniture made primarily of wicker, cane, osier, bamboo or rattan; (7) side rails for beds made of metal if sold separately from the headboard and footboard; (8) bedroom furniture in which bentwood parts predominate
Imports of subject merchandise are classified under subheading 9403.50.9040 of the Harmonized Tariff Schedule of the United States (“HTSUS”) as “wooden...beds” and under subheading 9403.50.9080 of the HTSUS as “other...wooden furniture of a kind used in the bedroom.” In addition, wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds may also be entered under subheading 9403.50.9040 of the HTSUS as “parts of wood” and framed glass mirrors may also be entered under subheading 7009.92.5000 of the HTSUS as “glass mirrors...framed.” This order covers all wooden bedroom furniture meeting the above description, regardless of tariff classification. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
On April 17, 2006, Dongguan Landmark Furniture Products Ltd. (“Dongguan Landmark”) submitted a separate rate application to the Department with regard to the first administrative review of wooden bedroom furniture from the PRC. Concurrently, Dongguan Landmark was participating in the first new shipper review of wooden bedroom furniture from the PRC covering the period June 24, 2004, through June 30, 2005, (“04/05 NSR”). On December 6, 2006, the Department completed this new shipper review, and determined Dongguan Landmark to be eligible for a separate rate.
On July 28, 2006, Maria Yee conditionally withdrew its request for review based on the premise that should the Department rescind the review, it would instruct CBP to liquidate Maria Yee's entries for the first administrative review period at the assessment rate of 6.65 percent (and refund all excess antidumping duty deposits with interest) in accordance with the final court decision,
Although Maria Yee submitted its withdrawal request after the 90-day regulatory deadline, Maria Yee submitted the request very soon after the close of the appeal date (see footnote 15), which occurred shortly after the 90-day regulatory deadline for withdrawals of request for review. In order to preserve its rights with respect to the ultimate deposits on the entries in question, Maria Yee had to retain its request for review in place until the possibility of all appeals had been exhausted. Additionally, the Department had already completed its selection of mandatory respondents and Maria Yee was not selected as a mandatory respondent in this administrative review. Therefore, the Department's selection process of the mandatory respondents for this administrative review was not compromised by Maria Yee's request for withdrawal. Furthermore, the Department did not expend significant resources as of the date Maria Yee withdrew its request for review. Therefore, the Department is rescinding this review with respect to Maria Yee, and we will instruct to CBP to liquidate Maria Yee's entries for the first administrative review period (
Furthermore, the Department is rescinding this review with respect to the following companies (
In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country. In accordance with section 771(18)(C)(i) of the Act , any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority.
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV on the NME producer's FOPs. The Act further instructs that valuation of the FOPs shall be based on the best available information in a surrogate market economy country or countries considered to be appropriate by the Department.
The Department first determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries comparable to the PRC in terms of economic development.
On September 12, 2006, the Department issued a request for parties to submit comments on surrogate country selection. On October 3, 2006, Petitioners submitted comments regarding the selection of a surrogate country.
Petitioners assert that India is the appropriate surrogate country for the PRC because India is at a level of economic development comparable to that of the PRC and is a significant producer of comparable merchandise. Additionally, Petitioners note that the Department selected India as the surrogate country in the original investigation.
The Dare Group claims that the method by which the Department selected the five surrogate countries is arbitrary and flawed. The Dare Group argues the surrogate country list in the
Starcorp, a mandatory respondent in this review, urges the Department “to not automatically revert to its 'default' position of selecting India as the surrogate country for this proceeding, despite the fact that it determined that India was the appropriate surrogate country in the less than fair value (“LTFV”) investigation.” Starcorp agues that the Department's surrogate country determination in the LTFV investigation was made on the basis of 2001 data. Starcorp contends that the PRC's per capita GNI growth has significantly outpaced India's GNI growth since 2001. Starcorp states that at this stage of the review it cannot rule out or endorse India or any other potential surrogate country and requests that the Department address the question anew in light of updated data placed on the record of this proceeding by the Dare Group.
On January 22, 2007, the Department issued its surrogate country memorandum in which we addressed the parties' comments.
Therefore, we have selected India as the surrogate country and, accordingly, have calculated NV using Indian prices to value the respondents' FOPs, when available and appropriate. We have obtained and relied upon publicly available information wherever possible.
Section 771(33) of the Act directs that the following persons will be considered affiliated: (A) Members of a family, including brothers and sisters (whether by whole or half blood), spouse, ancestors, and lineal descendants; (B) Any officer or director of an organization and such organization; (C) Partners; (D) Employer and employee; (E) Any person directly or indirectly owning, controlling, or holding with power to vote, five percent or more of the outstanding voting stock or shares of any organization and such organization; (F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person; and (G) Any person who controls any other person and such other person.
For purposes of affiliation, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.
To the extent that the affiliation provisions in section 771(33) of the Act do not conflict with the Department's application of separate rates and the statutory NME provisions in section 773(c) of the Act, the Department will determine that exporters and/or producers are affiliated if the facts of the case support such a finding.
Following these guidelines, we preliminarily determine that Fujian Lianfu Forestry Co. Ltd./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd., collectively, (“Dare Group”) are affiliated pursuant to sections 771(33)(A), (E) and (F) of the Act and that these companies should be treated as a single entity for the purposes of the antidumping administrative review of wooden bedroom furniture from the PRC. Based on our examination of the evidence presented in the Dare Group's questionnaire responses, we have determined that: (1) Fujian Lianfu Forestry Co. Ltd./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd. have overlapping managers and directors; (2) Fujian Lianfu Forestry Co. Ltd./Fujian Wonder Pacific Inc./Fuzhou Huan Mei Furniture Co., Ltd./Jiangsu Dare Furniture Co., Ltd. have some common ownership; (3) There is a familial relationship between persons with significant ownership interests in all three companies.
In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. The five mandatory respondents (
We have considered whether each of these companies referenced above is eligible for a separate rate. The Department's separate-rate test to determine whether the exporters are independent from government control does not consider, in general, macroeconomic/border-type controls,
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
The Department considers the following
Our analysis shows that, for the each of the mandatory respondents located in the PRC and certain separate-rate respondents, the evidence on the record supports a preliminary finding of
Through previous cases, the Department has learned that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC.
We determine that, for the mandatory respondents located in the PRC and certain separate- rate respondents, the evidence on the record supports a preliminary finding of
Therefore, the evidence placed on the record of this administrative review by each of the mandatory respondents and certain separate-rate respondents demonstrates an absence of government control, both in law and in fact, with respect to each of the exporter's exports of the subject merchandise, in accordance with the criteria identified in
Furthermore, we have found that certain separate-rate applicants
Finally, in the recently completed new shipper reviews, see
Exporters subject to this review that submitted responses to the Department's separate-rate application and had sales of the subject merchandise to the United States during the POR, but were not selected as mandatory respondents (“Separate-Rate Applicants”) have applied for separate-rate status and provided information for the Department to consider for this purpose. Therefore, for the Separate-Rate Applicants that provided sufficient evidence that they are separate from the state-controlled entity, we have established a weighted-average margin based on an average of the rates we calculated for the five mandatory respondents, excluding any rates that are zero,
Section 776(a)(1) and (2) of the Act provides that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information supplied if it can do so without undue difficulties.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
As discussed below, the Department initiated a new shipper review of Huanghouse's exports of merchandise covered by the antidumping duty order on wooden bedroom furniture from the PRC.
On April 18, 2006, Kong Fong Art Factory and Kong Fong Mao Iek Hong (“Kong Fong”) submitted its separate-rate application to the Department. On
On April 18, 2006, Putian Ou Dian Furniture Co., Ltd. (“Putian”) submitted its separate-rate application to the Department. On November 8, 2006, the Department issued Putian a supplemental questionnaire on its separate-rate application. On November 30, 2006, Putian informed the Department of its intent to withdraw from the administrative review, and stated that it would not provide a response to the Department's supplemental questionnaire. Pursuant to 19 CFR 351.214(f)(1), the Department “will rescind an administrative review, if the party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the review. The Department may extend this time limit if it determines that it is reasonable to do so.” In this case, the 90-day regulatory deadline was June 5, 2006; however, Putian did not submit its withdrawal request until November 30, 2006, more than five months past the regulatory deadline and after receiving the Department's supplemental questionnaire. During that time, the Department expended resources in reviewing Putian's separate-rate application and issuing a supplemental questionnaire. Where a party withdraws its request for review after the regulatory deadline and the Department has already expended resources in reviewing that respondent's data, the Department does not permit the party to withdraw from the proceeding.
Speedy is a company incorporated in the British Virgin Islands, and located on Taiwan. Speedy has a branch office in the PRC, but that entity does not have legal person status. Speedy claims that its owner is a citizen of Taiwan. The SRA states that firms owned by entities located in market-economy countries need only fill out the certifications contained in the application and provide supporting documentation for the fields in the application that are marked with an asterisk, “provided that the ultimate owners are also located in market-economy countries.” Speedy responded only to those items marked with an asterisk; however, the documentation that it provided in its questionnaire response failed to support its claim that its owner was a citizen of Taiwan. Consequently, we preliminary determine that Speedy is not eligible for separate-rate status.
Triple J submitted an SRA on April 18, 2006. On November 17, 2006 the Department issued a supplemental questionnaire to Triple J, establishing a due date of November 27, 2006 for Triple J's response. The Department telephoned Bruce Aitken of Aitken Berlin & Vrooman, counsel for Triple J, twice on November 17, 2006, both times leaving messages on Mr. Aitken's voice mail informing him that the supplemental questionnaire was available for pickup. The Department left voice messages again on November 22, 2006 and November 27, 2006 informing Mr. Aitken that the supplemental questionnaire still had not been picked up. Mr. Aitken did not return the Department's calls and Triple J did not pick up the supplemental questionnaire or submit a supplemental questionnaire response, nor did it request an extension of the deadline to respond to the supplemental questionnaire. The Department determined that the SRA contained several areas in which additional information was required for the Department to consider Triple J's eligibility for separate-rate status. For instance, the Department asked that Triple J explain how the submitted sales-related documents tied to one another to demonstrate that they related to the same sale. The Department also requested that Triple J submit a complete, fully translated copy of its business registration. In addition, the Department requested that Triple J correct inaccuracies found by the Department in the translation of the submitted Shareholder Certificate, and proof that the ultimate owners were citizens of a market-economy country. Consequently, we find that Triple J does not merit a separate rate and will remain part of the PRC entity because by not responding to the Department's request for information, it has not demonstrated an absence of government control either in law, or in fact.
On April 18, 2006, Nanaholy submitted its SRA. On October 23, 2006, the Department issued a supplemental questionnaire to Nanaholy. The due date for Nanaholy's response to the supplemental questionnaire was November 6, 2006. Nanaholy did not submit a response to the supplemental questionnaire nor did it request an extension of the due date to respond. Nanaholy's importer and U.S. customer, acting on Nanaholy's behalf in this proceeding, claimed that it never received the Department's October 23, 2006 supplemental questionnaire. On November 17, 2006, the Department provided Nanaholy with another opportunity to complete the supplemental questionnaire.
After analyzing Nanaholy's supplemental questionnaire response, the Department has determined the response to be deficient. First, Nanaholy failed to provide the requested auditor's notes that accompanied its capital statement. Second, the Department requested detailed information on the relationship between Nanaholy and its U.S. customer Starlin Interiors. Nanaholy stated it had an exclusive 10-year contract with Starlin Interiors, but did not provide a copy of this contract as requested by the Department. Third, the Department requested a fully translated copy of Nanaholy's audited financial statements. Nanaholy resubmitted a translated copy of what appears to be a summary of its financial statements, but did not submit the requested fully translated copy. Thus, the Department has preliminarily determined that Nanaholy is not eligible for a separate rate because it has failed to demonstrate an absence of government control of its export activities, in law and in fact.
Winny submitted its SRA on April 17, 2006. However, information contained in Winny's application indicates that is the manufacturer of the subject merchandise, and that the subject merchandise was exported by during the POR by its affiliate Winny Overseas Ltd. (“Winny Overseas”). On December 11, 2006, the Department issued to Winny Overseas a supplemental questionnaire requesting that Winny Overseas submit an SRA under its own name. Winny Overseas did not respond to the Department's supplemental questionnaire and failed to submit an
The Department issued a letter to all respondents identified in the
Additionally, because we have determined that the companies named above are part of the PRC-wide entity, the PRC-wide entity is now under review. Pursuant to section 776(a) of the Act, we further find that because the PRC-wide entity (including the companies discussed above) failed to respond to the Department's questionnaires, withheld or failed to provide information in a timely manner or in the form or manner requested by the Department, submitted information that cannot be verified, or otherwise impeded the proceeding, it is appropriate to apply a dumping margin for the PRC-wide entity using the facts otherwise available on the record. Additionally, because these parties failed to respond to our requests for information, we find an adverse inference is appropriate.
As noted above, the Department initiated a new shipper review of First Wood's exports of merchandise covered by the antidumping duty order on wooden bedroom furniture from the PRC.
On January 9, 2007, First Wood clarified this statement by submitting a withdrawal of its request for review. Pursuant to 19 CFR 351.214(f)(1), the Department “may rescind a new shipper review under this section...if a party that requested a review withdraws its request not later then 60 days after the date of publication of notice of initiation of the requested review.” In this case, the 60-day regulatory deadline was May 7, 2006; however, First Wood did not submit its withdrawal until January 9, 2007, more than 7 months past the regulatory deadline. During that time, the Department expended considerable resources reviewing First Wood's original questionnaire response, issuing two sets of supplemental questionnaires, each addressing Sections A, C, and D of its response and reviewing the two supplemental responses. Where a party withdraws its request for review after the regulatory deadline and the Department has already expended considerable resources in reviewing that respondent's data, the Department does not permit the party to withdraw from the proceeding.
With respect to First Wood's Section A questionnaire responses and its information regarding separate-rate eligibility, the Department has determined that First Wood has responded fully to this part of the questionnaire. Moreover, First Wood has not declined to participate in verification and, therefore, has not impeded the proceeding with respect to the issue of its separate-rate status. For a further discussion of the preliminary decision that First Wood has demonstrated its eligibility for a separate rate, please see the
However, notwithstanding the fact that the Department issued two full sets of supplemental questionnaires to First Wood regarding its reported sales and factors information, repeating many of the same questions in both supplemental questionnaires, First Wood withheld crucial sales and production information requested by the Department and failed to report information in the form or manner requested as described in sections 776(a)(2)(A) and (B) of the Act. As a consequence, the Department has preliminarily determined that it does not have sufficient information on the record of this review to calculate a margin for First Wood based on the respondent's submitted data, pursuant to section 776(a)(1) of the Act. Specifically, in the original and first and second supplemental questionnaires, the Department requested that First Wood provide sales and cost reconciliations reconciling its reported POR sales and FOPs to its financial statements. Sales and cost reconciliations serve as the starting point for the Department to use a respondent's data as they provide a road map for how the reported information is an accurate reflection of the information contained in the company's books and records and its financial statements. Without these reconciliations, the Department is unable to ascertain whether the sales and factor information submitted by the respondent are consistent with its financial statements. Nor, can the Department conduct a verification of the sales and factor information. Additionally, in the original and two subsequent
Sections 776(a)(2)(A), (B), (C) and (D) of the Act authorize the Department, subject to section 782(d) of the Act, to use facts otherwise available when a respondent withholds information that has been requested by the Department, fails to provide such information in a timely manner or in the form or manner requested subject to sections 782(c)(1) and (e) of the Act in this proceeding, significantly impedes the proceeding, or provides such information, but the information cannot be verified.
The Department has preliminarily determined that, pursuant to Section 782(e) of the Act, it cannot rely on the information provided by First Wood and that the use of facts otherwise available is warranted for First Wood pursuant to each of the four criteria identified in section 776(a)(2) of the Act. Specifically, First Wood withheld the sales and cost reconciliations as well as extensive FOP data requested by the Department as discussed above. In addition, First Wood failed to provide the units of measure for its FOP consumption in a form or manner requested by the Department. Further, First Wood reported its FOP consumption in units of measure in a manner that does not allow the Department to identify the actual consumption rates or calculate the value for the FOP consumed in the production of subject merchandise, thereby significantly impeding the proceeding.
Section 782(d) of the Act requires that, in the case of a deficient response by the respondent, the Department inform the respondent of the deficiency and give the respondent an opportunity to remedy or explain the deficiency. In addition to its original questionnaire, the Department issued two supplemental questionnaires to First Wood. In each of these three questionnaires, the Department requested that First Wood provide sales and cost reconciliation documents demonstrating how it identified the sales and cost information it reported to the Department and reconciling the reported sales and cost data to its financial statements, as well as the reported units of measure for its FOPs. Despite being afforded three opportunities to supply the requested information and/or provide a reason for its inability to do so, First Wood failed to furnish the required sales and cost reconciliations and units of measure for quantifying inputs.
Moreover, we have determined that First Wood has not acted to the best of its ability in providing the requested data. While the standard for cooperation does “not require perfection and recognizes that mistakes sometimes occur, it does not condone inattentiveness, carelessness, or inadequate record keeping.”
In sum, because the PRC-wide entity failed to respond to our request for information, it has failed to cooperate to the best of its ability. Further, as discussed above, First Wood also failed to cooperate to the best of its ability with respect to responding to the Department's requests for information. Therefore, the Department preliminarily finds that, in selecting from among the facts available, an adverse inference is appropriate pursuant to section 776(b) of the Act for both the PRC-wide entity and First Wood.
In deciding which facts to use as adverse facts available (“AFA”), section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any information placed on the record. In selecting a rate for AFA, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Generally, it is the Department's practice to select, as AFA, the highest rate in any segment of the proceeding.
The Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit (“Fed. Cir.”) have consistently upheld the Department's practice.
In choosing the appropriate balance between providing respondents with an incentive to respond accurately and imposing a rate that is reasonably related to the respondents' prior commercial activity, selecting the highest prior margin “reflects a common sense inference that the highest prior margin is the most probative evidence of current margins, because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.”
As AFA, we have preliminarily assigned to the PRC-wide entity and to First Wood a rate of 216.01 percent, the highest calculated rate from the most recently completed new shipper reviews of wooden bedroom furniture from the PRC which is the highest rate on the record of all segments of this proceeding. The Department preliminarily determines that this information is the most appropriate from the available sources to effectuate the purposes of AFA. The Department's reliance on the highest calculated rate from the recently published new shipper review to determine an AFA rate is subject to the requirement to corroborate secondary information.
Sections 776(a)(2)(A) and 776(a)(2)(B) of the Act provide for the use of facts available when an interested party withholds information that has been requested by the Department or when an interested party fails to provide the information requested in a timely manner and in the form required. Additionally, section 776(b) of the Act provides for the use of AFA when an interested party has failed to cooperate by not acting to the best of its ability. We have concluded that the Dare Group and Starcorp each did not cooperate to the best of its ability, see below for specific explanations for each mandatory respondent.
We have preliminarily determined that the use of a partial adverse inference is warranted for certain FOPs reported by the Dare Group.
The information the Department requested is incomplete for several of the Dare Group's sales, and as a result, the Department is unable to calculate margins for these sales based on the information supplied. Specifically, the Dare Group's December 18, 2006, Section D database inexplicably reported labor usages of zero for numerous control numbers. On December 16, 2006, the Department notified the Dare Group that its FOP database reported these zero values.
Because the Dare Group has not provided the Department with complete information with respect to indirect and packing labor for certain control numbers, as requested in the Department's questionnaires, the Department does not have adequate information to calculate margins for the sales in question. Thus, the information on the record cannot serve as a reliable basis for this review under section 782(e) of the Act. Accordingly, we have determined that we must calculate margins for the sales in question using facts otherwise available in accordance with sections 776(a)(2)(A) and 776(a)(2)(B) of the Act.
We have further concluded that when selecting from among the facts available, an adverse inference is appropriate pursuant to section 776(b) of the Act. In this instance, the Department fully notified the Dare Group of the deficiencies in its submission to the Department, and has further provided the Dare Group with the opportunity to correct its deficiencies. Despite these efforts, the Dare Group failed to provide us with all of the missing data. The courts have recognized that, notwithstanding the Department's obligations to notify parties of deficiencies in submissions received, a respondent also has the burden to create a complete and accurate record.
Therefore, in accordance with sections 776(a)(2) and 776(b) of the Act, we have applied partial AFA in calculating the Dare Group's margin. For each of the Dare Group's transactions that have a zero value for indirect and/or packing labor, we have applied the highest value of the respective CONNUM from the Dare Group's FOP database.
We have preliminarily determined that the use of a partial adverse inference is warranted for certain U.S. sales made by Starcorp.
In its questionnaire responses, Starcorp reported that it operates four separate plants, which produce finished subject merchandise from raw material inputs.
In its October 2, 2006, Section D questionnaire response (“DQR”), rather than submit weighted-average information from its four production facilities, Starcorp instead submitted an FOP database based on data maintained in what it refers to as its “combined” financial statements. In this questionnaire response, Starcorp asserted that its combined data reflected its actual factors consumption during the POR. Starcorp further stated that it reported its FOPs based on “a standard cost allocation methodology that allocated its total actual consumption of a given raw material to each unit of a particular model sold during the POR.”
In our first supplemental questionnaire, we instructed Starcorp to provide separate databases for each of its four plants. In its response, Starcorp declined to comply with our request and continued to assert the accuracy and relevance of the “combined” database, arguing that the “combined” financial system truly reflects the full integration of the four plants.
In our second supplemental Section D questionnaire, the Department asked Starcorp to provide additional information to support its claim that the plant-specific databases are inappropriate for use in the margin calculation.
In response to comments submitted by Petitioners on January 16, 2007, reflecting an analysis similar to that described above, Starcorp, in a submission on January 19, 2007, attempting to explain the above discrepancies, stated that the “combined” database provided factors for all control numbers in the U.S. sales database, even those not produced during the POR, while the four individual plant databases only provided FOPs for merchandise produced during the POR. Starcorp also stated, for the first time, that the weighted-average database is based on the control numbers of the four individual plant databases plus additional control numbers reflecting merchandise sold but not produced during the POR.
The revelation by Starcorp that the “combined” database, as well as the weighted-average database, reflected sales quantities and FOPs for products which were sold but not produced, appears not to be in line with the information Starcorp provided in its earlier responses, in which Starcorp stated it was reporting production quantities in its FOP database. Specifically, in its initial questionnaire, the Department instructed respondents to provide a reconciliation tying their reported sales and production quantities to their internal accounting documents and financial statements. In responding to this request, Starcorp provided schedules which clearly indicate differences between production amounts and sales amounts, and which indicate that the combined database reflected production, not sales quantities.
For the preliminary results, we have determined to use the four plant-specific individual databases in our margin calculation program, because the record indicates that these databases contain the FOPs for those products which were produced by each plant, and do not incorporate sales quantities in the allocation of factor consumption to each control number. While Starcorp has provided what it stated was a weighted-average database for all four plants, we find that this is not the case and, therefore, it is inappropriate for use in our margin calculation. Similarly, the “combined” FOP database, by Starcorp's own admission, also does not reflect actual production during the POR. Thus, the Department has determined to use the four plant-specific individual databases, which appear to be based on the plant-specific production quantities and FOPs. However, this database is missing certain control numbers, which leaves certain U.S. transactions without a corresponding FOP. Thus, information on the record cannot serve as a reliable basis for calculating a margin on these transactions for this determination under section 782(e) of the Act. Therefore, the Department must use the facts otherwise available to calculate margins for all of Starcorp's U.S. sales that do not have a matching FOP control number in the four individual plant databases. We have concluded that Starcorp did not cooperate to the best of its ability because it did not disclose, in a timely manner, the nature of all its reported FOP and quantity data that would allow the Department to conduct a meaningful analysis or calculate a margin based on all the U.S. sales it reported. Despite being asked to submit the four individual databases much earlier in the proceeding, Starcorp only submitted these databases on January 8, 2007. Moreover, Starcorp only first identified the nature of reporting less than two weeks before the deadline for the preliminary results of review. Therefore, in accordance with sections 776(a)(2) and 776(b) of the Act, we have applied AFA to all of Starcorp's U.S. sales that do not have a matching control number in the individual plant databases. As AFA, we have applied 216.01 percent, the rate calculated for another respondent in the recently completed new shipper review.
We have preliminarily determined that the use of facts available is warranted for certain sales reported by the Dare Group.
The information the Department requested is incomplete for several of the Dare Group's sales and, as a result, the Department is unable to calculate margins for these sales based on the information supplied. Specifically, in its October 2, 2007, Section C submission, the Dare Group reported the unit weight in kilograms in its U.S. sales database. On November 22, 2006, the Department issued a supplemental Section C & D questionnaire requesting that the Dare Group provide a field in its U.S. sales database for the gross unit weight. In its December 18, 2006, supplemental Section C and D response, the Dare Group submitted a U.S. sales database with a field for gross unit weight. However, this field reported quantities of zero for numerous transactions.
Because the Dare Group has not provided the Department with complete information with respect to the gross unit weights of these sales, the Department cannot calculate dumping margins for the sales with reported quantities of zero. Accordingly, we find that for the sales at issue, we must calculate dumping margins using the facts otherwise available pursuant to sections 776(a)(2)(A) and (B) of the Act.
In accordance with section 776(a)(2) of the Act, we have applied facts available to the Dare Group's sales with reported quantities of zero. As facts available, we have applied the Dare Group's weighted-average margin to these sales.
We have preliminarily determined that the use of a facts available is warranted for certain sample sales made by Fine Furniture.
Despite the Department's requests for information, Fine Furniture has not provided us with complete and accurate information with respect to certain U.S. sample sales it made during the POR. For certain of these U.S. sample sales, while Fine Furniture reported the invoice price of the transactions for all of its U.S. sample sales, it failed to report control numbers for these sales. For certain other U.S. sales Fine Furniture provided control numbers in its U.S. database that do not correspond to control numbers in its FOP database. Furthermore, Fine Furniture has not provided any explanation that sheds light on these discrepancies. Absent this information, (
In accordance with section 776(a)(2) of the Act, we have applied facts available for each of Fine Furniture's U.S. sample sales that do not have a control number. As facts available, we have applied Fine Furniture's weighted-average margin to these sales.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.
The AFA rate that the Department is now using was determined in the recently published new shipper review.
To assess the relevancy of the new rate used, the Department examined the highest rate from the recently completed new shipper review. We find that the highest rate from the new shipper proceeding of 216.01 percent is relevant to this proceeding because: (1) it is a company-specific calculated rate; and (2) the new shipper review period overlaps this administrative review period by twelve months (
As the adverse margin is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that this rate, meets the corroboration criteria established in section 776(c) that secondary information have probative value. As a result, the Department determines that the margin is corroborated for the purposes of this administrative review and may reasonably be applied to First Wood, Huanghouse, Starcorp, and the PRC-wide entity as AFA.
Because these are preliminary results of review, the Department will consider all margins on the record at the time of the final results of review for the purpose of determining the most appropriate final adverse margin.
For the Dare Group, Fine Furniture, Foshan Guanqui, and Starcorp, we based the U.S. price on export price (“EP”), in accordance with section 772(a) of the Act, because EP is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under section 772(c) of the Act. Additionally, we calculated EP based on the packed price from the exporter to the first unaffiliated customer in the United States.
For the Dare Group, we calculated EP based on delivered prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sales price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included foreign inland freight expenses for inter-factory shipping, inland freight from the plant to the port, foreign brokerage and handling, U.S. brokerage and handling, and import duties. We also deducted certain customer discounts from the gross unit price.
For the Dare Group, the Department has denied its claim for a U.S. price adjustment (i.e., Other Revenue) for the preliminary results. From the information that the Dare Group has submitted on the record, we have determined that this may be a circumstance-of-sale adjustment rather than an adjustment to U.S. price, and since the Department is not able to make circumstance-of-sale adjustments in NME proceedings, we have denied this adjustment. For a detailed description of all adjustments, see
For Foshan Guanqui, we calculated EP based on delivered prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sales price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included inland freight - plant/warehouse to port of exit. Additionally, for certain sales, we deducted brokerage and handling, international ocean freight, and market economy brokerage and handling expenses from the gross unit price, in accordance with section 772(c) of the Act.
For Foshan Guanqui, the Department has denied its claim for a U.S. price adjustment (
For Shanghai Aosen, we calculated EP based on delivered prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sales price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included foreign inland freight and foreign brokerage and handling expenses. For a detailed description of all adjustments, see Memorandum to The File Through
For Starcorp, we calculated EP based on delivered prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sales price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included inland freight from the plant to the port of exit and domestic brokerage and handling charges. For a detailed description of all adjustments, see
In accordance with section 772(b) of the Act, we used Constructed Export Price (“CEP”) methodology for Fine Furniture because the first sale to the unaffiliated person was made by Fine Furniture's U.S. affiliate, Fine Furniture Design & Marketing LLC (“FFDM”). We calculated the CEP for Fine Furniture based on the sales made by FFDM to unaffiliated U.S. customers. We based CEP on delivered prices to the first unaffiliated purchaser in the United States.
For Fine Furniture, we made adjustments to the gross unit price for revenue item(s), foreign inland freight from the processing facility to the port of exit, export fees, international ocean freight, marine insurance, and U.S. import duties. In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States, including commissions, warranty expenses, credit expenses, discounts, rebates, billing adjustments, royalties, and indirect selling expenses. We also made an adjustment for profit in accordance with section 772(d)(3) of the Act.
For the Dare Group, Fine Furniture, and Starcorp, we note that each entity provided a separate database of free-of-charge merchandise, as requested in our original questionnaire.
Section 773(c)(1) of the Act provides that the Department shall determine the NV using an FOP methodology if: (1) the merchandise is exported from an NME country; and (2) the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. When determining NV in an NME context, the Department will base NV on FOP, because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under our normal methodologies. Under section 772(c)(3) of the Act, FOPs include but are not limited to: (1) hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs. We used FOPs reported by respondents for materials, energy, labor and packing.
In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to find an appropriate surrogate value to value FOPs, but when a producer sources an input from a market economy and pays for it in market-economy currency, the Department will normally value the factor using the actual price paid for the input. See 19 CFR 351.408(c)(1);
It is the Department's consistent practice that, where the facts developed in the United States or third-country countervailing duty findings include the existence of subsidies that appear to be used generally (in particular, broadly available, non-industry specific export subsidies), it is reasonable for the Department to find that it has particular and objective evidence to support a reason to believe or suspect that prices of the inputs from the country granting the subsidies may be subsidized.
In avoiding the use of prices that may be subsidized, the Department does not conduct a formal investigation to ensure that such prices are not subsidized, but rather relies on information that is generally available at the time of its determination.
We have reason to believe or suspect that prices of inputs from Indonesia, South Korea, and Thailand may have been subsidized. Through other proceedings, the Department has learned that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, finds it reasonable to infer that all exports to all markets from these countries may be subsidized. See,
In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by respondents for the POR. To calculate NV, we multiplied the reported per-unit factor quantities by publicly available Indian SVs (except as noted below). In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Indian import SVs a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory where appropriate (
The mandatory respondents reported that certain of their reported raw material inputs were sourced from a market-economy country and paid for in market-economy currencies. Pursuant to 19 CFR 351.408(c)(1), when a mandatory respondent source inputs from a market-economy supplier in meaningful quantities (
Where we could not obtain publicly available information contemporaneous with the POR with which to value FOPs, we adjusted the SVs using, where appropriate, the Indian Wholesale Price Index (“WPI”) as published in the International Financial Statistics of the International Monetary Fund.
For the purposes of the preliminary results, the Department has used http://www.allmeasures.com and other publicly available information where interested parties did not submit alternative conversion values for specific FOPs. Due to the complexity and number of the conversions, however, the Department has preliminarily determined to use the allmeasures website to convert certain values. For the final results, the Department will continue to consider other appropriate conversion ratios.
For direct labor, indirect labor, and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as reported on Import Administration's website, Import Library, Expected Wages of Selected NME Countries, revised in November 2005, http://ia.ita.doc.gov/wages/index.html. The source of these wage-rate data is the Yearbook of Labour Statistics 2004, ILO (Geneva: 2003), Chapter 5B: Wages in Manufacturing. The years of the reported wage rates range from 1998 to 2003. Because this regression-based wage rate does not separate the labor rates into different skill levels or types of labor, we have applied the same wage rate to all skill levels and types of labor reported by the respondent.
To value electricity, we used data from the International Energy Agency Key World Energy Statistics (2003 edition). Because the value for electricity was not contemporaneous with the POR, we adjusted the values for inflation.
To calculate the value for domestic brokerage and handling, the Department used information available to it contained in the public version of two questionnaire responses placed on the record of separate proceedings. The first source was December 2003-November 2004 data contained in the public version of Essar Steel's February 28, 2005, questionnaire submitted in the antidumping duty administrative review of hot-rolled carbon steel flat products from India.
To value international freight, the Department obtained a generally publicly available price quote from http://www.maersksealand.com/HomePage/appmanager/, a market-economy provider of international freight services.
The Department valued steam coal using the 2003/2004 Tata Energy Research Institute's Energy Data Directory & Yearbook (“TERI Data”). The Department was able to determine, through its examination of the 2003/2004 TERI Data, that: a) the annual TERI Data publication is complete and comprehensive because it covers all sales of all types of coal made by Coal India Limited and its subsidiaries, and b) the annual TERI Data publication prices are exclusive of duties and taxes. Because the value was not contemporaneous with the POR, the Department adjusted the rate for
We used Indian transport information in order to value the freight-in cost of the raw materials. The Department determined the best available information for valuing truck and rail freight to be from www.infreight.com. This source provides daily rates from six major points of origin to five destinations in India during the POR. The Department obtained a price quote on the first day of each month of the POR from each point of origin to each destination and averaged the data accordingly.
To value factory overhead, selling, general, and administrative expenses (“SG&A”), and profit, we used the audited financial statements for the fiscal year ending March 31, 2005, from the following producers: Ahuja Furnishers Pvt. Ltd., Akriti Perfections India Pvt. Ltd., Fusion Design Private Ltd., Huzaifa Furniture Industries Pvt. Ltd., Imperial Furniture Company Pvt. Ltd., Indian Furniture Products, Ltd., and Nizamuddin Furnitures Pvt. Ltd., all of which are Indian producers of comparable merchandise. From this information, we were able to determine factory overhead as a percentage of the total raw materials, labor and energy (“ML&E”) costs; SG&A as a percentage of ML&E plus overhead (
We preliminarily determine that the following weighted-average dumping margins exist for the period June 24, 2004, through December 31, 2005:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review.
The Department will issue the final results of these administrative reviews, which will include the results of its analysis of issues raised in the briefs, within 120 days of publication of these preliminary results, in accordance with 19 CFR 351.213(h)(1), unless the time limit is extended.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of these new shipper and administrative reviews. In accordance with 19 CFR 351.212(b)(1), we have calculated an exporter/importer-or customer-specific assessment rate or value for merchandise subject to these reviews. For these preliminary results, we divided the total dumping margins for the reviewed sales by the total entered quantity of those reviewed sales for each applicable importer. In these reviews, if these preliminary results are adopted in our final results of review, we will direct CBP to assess the resulting rate against the entered customs value for the subject merchandise on each importer's/customer's entries during the POR.
The following cash deposit requirements will be effective upon publication of the final results of these administrative reviews for shipments of subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(1)( C ) and (a)(2)( C ) of the Act: (1) for the Dare Group, Fine Furniture, Foshan Guanqui, Shanghai Aosen, and Starcorp, and the separate-rate applicants being granted a separate rate, the cash deposit rate will be that established in the final results of these reviews; (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 216.01 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
The Department is issuing and publishing these preliminary results of administrative review and new shipper reviews in accordance with sections 751(a) and 777(i)(1) of the Act, and 19 CFR 351.221(b) and 351.214(h).
The National Oceanic and Atmospheric Administration's (NOAA's) Damage Assessment, Remediation, and Restoration Program (DARRP) is announcing new indirect cost rates on the recovery of indirect costs for its component organizations involved in natural resource damage assessment and restoration activities for fiscal year (FY) 2005. The indirect cost rates for this fiscal year and dates of implementation are provided in this notice. More information on these rates and the DARRP policy can be found at the DARRP Web site at
For further information, contact Brian Julius at 301-713-4248, ext. 199, by fax at 301-713-4389, or e-mail at
The mission of the DARRP is to restore natural resource injuries caused by releases of hazardous substances or oil under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601
Consistent with Federal accounting requirements, the DARRP is required to
In December 1998, the DARRP hired the public accounting firm Rubino & McGeehin, Chartered (R&M) to: Evaluate cost accounting system and allocation practices; recommend the appropriate indirect cost allocation methodology; and determine the indirect cost rates for the three organizations that comprise the DARRP. A
R&M continued its assessment of DARRP's indirect cost rate system and structure for FYs 2000 and 2001. A second federal notice specifying the DARRP indirect rates for FYs 2000 and 2001 was published on December 2, 2002 (67 FR 71537).
In October 2002, DARRP hired the accounting firm of Cotton and Company LLP (Cotton) to review and certify DARRP costs incurred on cases for purposes of cost recovery and to develop indirect rates for FY 2002 and subsequent years. As in the prior years, Cotton concluded that the cost accounting system and allocation practices of the DARRP component organizations are consistent with Federal accounting requirements. Consistent with R&M's previous analyses, Cotton also determined that the most appropriate indirect allocation method continues to be the Direct Labor Cost Base for all three DARRP component organizations. The Direct Labor Cost Base is computed by allocating total indirect cost over the sum of direct labor dollars plus the application of NOAA's leave surcharge and benefits rates to direct labor. Direct labor costs for contractors from the Oak Ridge Institute for Science and Education (ORISE) and I.M. Systems Group (IMSG) also were included in the direct labor base because Cotton determined that these costs have the same relationship to the indirect cost pool as NOAA direct labor costs. ORISE and IMSG provided on-site support to the DARRP in the areas of injury assessment, natural resource economics, restoration planning and implementation, and policy analysis. IMSG continues to provide on-site support to the DARRP. A third federal notice specifying the DARRP indirect rates for FY 2002 was published on October 6, 2003 (68 FR 57672), a fourth notice for the FY 2003 indirect cost rates appeared on May 20, 2005 (70 FR 29280), and a fifth notice for the FY 2004 indirect cost rates was published on March 16, 2006 (71 FR 13356). Cotton's reports on these indirect rates can also be found on the DARRP Web site at
Cotton reaffirmed that the Direct Labor Cost Base is the most appropriate indirect allocation method for the development of the FY 2005 indirect cost rates.
The DARRP will apply the indirect cost rates for FY 2005 as recommended by Cotton for each of the DARRP component organizations as provided in the following table:
These rates are based on the Direct Labor Cost Base allocation methodology.
The FY 2005 rates will be applied to all damage assessment and restoration case costs incurred between October 1, 2005 and September 30, 2006. DARRP will use the FY 2005 indirect cost rates for future fiscal years until subsequent year-specific rates can be developed.
For cases that have settled and for cost claims paid prior to the effective date of the fiscal year in question, the DARRP will not re-open any resolved matters for the purpose of applying the revised rates in this policy for these fiscal years. For cases not settled and cost claims not paid prior to the effective date of the fiscal year in question, costs will be recalculated using the revised rates in this policy for these fiscal years. Where a responsible party has agreed to pay costs using previous year's indirect rates, but has not yet made the payment because the settlement documents are not finalized, the costs will not be recalculated.
The DARRP indirect cost rate policies and procedures published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for amendment.
Notice is hereby given that Mystic Aquarium, 55 Coogan Boulevard, Mystic, CT 06355 (Dr. Lisa Mazzaro, Principal Investigator) has requested an amendment to scientific research Permit No. 42-1642.
Written, telefaxed, or e-mail comments must be received on or before March 12, 2007.
The amendment request and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978)281-9300; fax (978)281-9394.
Written comments or requests for a public hearing on this request should be submitted to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular amendment request would be appropriate.
Comments may also be submitted by facsimile at (301) 427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period.
Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is
Amy Sloan or Jennifer Skidmore, (301)713-2289.
The subject amendment to Permit No. 42-1642, which was most recently amended on April 28, 2004 (69 FR 24586), is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Permit No. 42-1642 authorizes the permit holder to conduct nutritional research on captive Steller sea lions (
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that the South Carolina Department of Natural Resources 217 Fort Johnson Road, Charleston, South Carolina 29412 [Responsible Party/Principal Investigator: Mark Collins, PhD], has been issued a permit to conduct scientific research on shortnose sturgeon (
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 427-2521; and
Protected Resources Division, Southeast Region, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; phone (727) 824-5312; fax (727) 824-5309.
Malcolm Mohead or Carrie Hubard, (301)713-2289.
On September 09, 2003, notice was published in the
The South Carolina Department of Natural Resources [Dr. Mark Collins, Principal Investigator], is authorized to sample and track shortnose sturgeon in South Carolina coastal waters. Annually, up to 100 fish will be taken via gill nets, measured, weighed, PIT and Dart tagged, anaesthetized, and gastric lavaged. A subset of 50 fish will be fitted with radio/sonic transmitters and tracked during the study. Additionally, the researcher will deploy buffer pads as substrate to collect up to 100 sturgeon eggs annually to verify spawning periodicity. Two fish are authorized annually as unintentional mortality. The permit will terminate on February 28, 2012.Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Department of the Army, DoD.
Notice.
In accordance with 35 U.S.C. 209(e) and 37 CFR 404(a)(1)(i), the Department of the Army announces the intent to grant a revocable, non-assignable, partially exclusive license to Symbiont Enterprises, Inc., Huntsville, AL, for the AWarE Video Elements (AVE) government-owned software for archiving and conducting searches of video data.
Anyone wishing to object to the grant of this license can file written objections, along with supporting evidence, if any, within 15 days from the date of this publication.
Written objections are to be filed with the Office of Research and Technology Applications, SDMC-RDTC-TDL (Ms. Susan D. McRae), Bldg. 5220, Von Braun Complex, Redstone Arsenal, AL 35898.
Ms. Joan Gilsdorf, Patent Attorney, e-mail:
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
This notice of availability announces the public release of the Draft Supplemental Environmental Impact Statement (DSEIS) to evaluate construction of authorized improvements to the Federal Gulfport Harbor Navigation Project in Harrison County, MS. The Mobile District, U.S. Army Corps of Engineers (Corps) published in the
The public comment period for the DSEIS will extend through April 2, 2007.
To receive a copy of the DSEIS, or to submit comments, contact U.S. Army Corps of Engineers, Mobile District, Coastal Environment Team, P.O. Box 2288, Mobile, AL 36628-0001. A copy of the full document may also be viewed in the Mobile Public Library (Main Branch) or in the Mobile District.
Questions about the proposed action and the DSEIS should be addressed to Ms. Linda T. Brown, Coastal Environment Team, phone (251) 694-3786, Mobile District, U.S. Army Corps of Engineers, P.O. Box 2288, Mobile, AL 36628 or e-mail address:
Public comments can be submitted through a variety of methods. Written comments may be submitted to the Corps by mail, facsimile, or electronic methods. Additional comments (written or oral) may be presented at the public hearing on March 8, 2007 at the 19th Street Community Center, 3319 19th Street, Gulfport, MS. Additional information on the public hearing will be mailed in a public notice to the agencies and public and announced in news releases.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the forthcoming meeting.
Mr. Mark R. Pointon, Headquarters, U.S. Army Corps of Engineers, CECW-CO, 441 G Street, NW., Washington, DC 20314-1000; Ph: 202-761-4258.
The meeting is open to the public. Any interested person may attend, appear before, or file statements with the committee at the time and in the manner permitted by the committee.
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before April 10, 2007.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
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
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Applications Available: February 9, 2007.
An application from a consortium of eligible entities must meet the requirements of 34 CFR 75.127 through 75.129. An application from a consortium of eligible entities must include a signed consortium agreement with the application. Letters of support do
Applicants applying in consortium with or as an “Indian organization” must demonstrate eligibility by showing how the “Indian organization” meets all the criteria outlined in 34 CFR 263.20.
The term “Indian institution of higher education” means an accredited college or university within the United States cited in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note), any other institution that qualifies for funding under the Tribally Controlled College or University Assistance Act of 1978 (25 U.S.C. 1801
We will reject any application that does not meet these requirements.
The Department is not bound by any estimates in this notice.
School readiness projects that provide age appropriate educational programs and language skills to three- and four-year-old Indian students to prepare them for successful entry into school at the kindergarten school level.
College preparatory programs for secondary school students designed to increase competency and skills in challenging subject matters, including mathematics and science, to enable Indian students to transition successfully to postsecondary education.
These priorities are:
In accordance with 34 CFR 75.105(b)(2)(iv), this priority is from
For Competitive Preference Priority One, the combination of activities is limited to the activities described in the Absolute Priorities.
In accordance with 34 CFR 75.105(b)(2)(iv), this priority is from section 7143 of the ESEA, 20 U.S.C. 7473. We award five competitive preference priority points to an application submitted by an Indian tribe, Indian organization, or Indian institution of higher education, including a consortium of any of these entities with other eligible entities. An application from a consortium of eligible entities that meets the requirements of 34 CFR 75.127 through 75.129 and includes an Indian tribe, Indian organization, or Indian institution of higher education will be considered eligible to receive the five competitive preference points. These competitive preference points are in addition to the five competitive preference points that may be given under Competitive Preference Priority One.
A consortium agreement, signed by all parties, must be submitted with the application in order for the application to be considered a consortium application. Letters of support do
The term “Indian institution of higher education” means an accredited college or university within the United States that in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note), any other institution that qualifies for funding under the Tribally Controlled College or University Assistance Act of 1978 (25 U.S.C. 1801
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
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An application from a consortium of eligible entities must meet the requirements of 34 CFR 75.127 through 75.129. An application from a consortium of eligible entities must submit the consortium agreement, signed by all parties, with the application. Letters of support do
Applicants applying in consortium with or as an “Indian organization” must demonstrate eligibility by showing how the “Indian organization” meets all the criteria outlined in 34 CFR 263.20.
The term “Indian institution of higher education” means an accredited college or university within the United States cited in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note), any other institution that qualifies for funding under the Tribally Controlled College or University Assistance Act of 1978 (25 U.S.C. 1801
We will reject any application that does not meet these requirements.
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You may also contact ED Pubs at its Web site:
You may also obtain an electronic copy of the application package by downloading it from the following Web site:
Individuals with disabilities may obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed elsewhere in this notice under
2.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit Part III to no more than 35 pages, using the following standards:
• A page is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is 12 point or larger but no smaller than 10 point.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, you must include all of the application narrative in Part III.
The page limit of 35 pages for Part III is mandatory. We will reject your application if:
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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a.
Applications for grants under the Demonstration Grants for Indian Children, CFDA Number 84.299A must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for Demonstration Grants for Indian Children at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted, and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Lana Shaughnessy, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5C152, Washington, DC 20202-6335. FAX: (202) 260-4149.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
or
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.299A),550 12th Street, SW.,Room 7041, Potomac Center Plaza,Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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We encourage applicants to demonstrate a strong capacity to provide reliable data on these measures in their responses to the selection criteria “Quality of project services” and “Quality of the project evaluation.”
All grantees will be expected to submit, as part of their performance report, information with respect to these performance measures.
For Further Information Contact: Lana Shaughnessy, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5C152, Washington, DC 20202-6335. Telephone: (202) 205-2528 or by e-mail:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in this section.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
The Secretary limits eligibility under this discretionary grant program competition to applicants that do not currently have an active grant under the Grants to Reduce Alcohol Abuse (CFDA No. 84.184A) Program. For the purpose of this eligibility requirement, a grant is considered active until the end of the grant's project or funding period, including any extensions of those periods that extend the grantee's authority to obligate funds.
The Secretary may reserve up to 25 percent of these funds to award grants to low-income and rural LEAs.
Contingent upon the availability of funds, we may make additional awards in FY 2008 from the list of un-funded applications from this competition.
The Department is not bound by any estimates in this notice.
This priority is:
A project must develop and implement innovative and effective programs to reduce alcohol abuse in secondary schools.
The Secretary may reserve up to 25 percent of funds for grants to low-income and rural LEAs.
Contingent upon the availability of funds, we may make additional awards in FY 2008 from the list of non-funded applications from this competition.
The Department is not bound by any estimates in this notice.
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a. A description of the activities to be carried out under the grant;
b. An assurance that such activities will include one or more of the proven strategies for reducing underage alcohol abuse as determined by the Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services;
c. An explanation of how other activities to be carried out under the grant that are not part of a SAMHSA model program will be effective in reducing underage alcohol abuse, including references to the past effectiveness of such activities; and
d. An assurance that the applicant will submit to the Secretary an annual report concerning the effectiveness of the programs and activities funded under the grant.
1.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs be sure to identify this competition as follows: CFDA number 84.184A.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact persons listed under
You may also obtain the application package electronically by downloading it from the following Web site:
2.
3.
Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV.
6.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
We do not consider an application that does not comply with the deadline requirements.
Deadline for Intergovernmental Review: May 25, 2007.
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To comply with the President's management Agenda, we are participating as a partner in the Government wide Grants.gov Apply site. The Grants to Reduce Alcohol Abuse (CFDA) number: 84.184A, is included in this project. We request your participation in Grants.gov.
If you choose to submit your application electronically, you must use the Government wide Grants.gov Apply site at
You may access the electronic grant application for the Grants to Reduce Alcohol Abuse at
Please note the following:
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information-Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 42—have replaced the ED 424 (Application for Federal Education Assistance).
• If you submit your application electronically, you must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department). The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.184A),550 12th Street, SW.,Room 7041, Potomac Center Plaza,Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays and Federal holidays.
If you mail or hand deliver your application to the Department:
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of the Application for Federal Education Assistance (ED 424) the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
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Applications from rural and low-income applicants will be read and scored separately and up to 25 percent of the available funds will be reserved for awards to these LEAs. The following is the suggested definition of rural and low-income that has been used by this program in previous competitions; however, LEAs that want to be considered as rural and low-income applicants may provide other supporting evidence of their status as rural and low-income.
A rural and low-income LEA is one (a) that is designated with a locale code of 6, 7, or 8, as determined by the Department's National Center for Education Statistics (NCES); and (b) in which 20 percent or more of the children ages 5 through 17 years served by the LEA are from families with incomes below the poverty line.
Applicants wishing to be considered under this factor must be both rural and low-income.
1.
If your application is not evaluated or not selected for funding, we will notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Office of Safe and Drug-Free Schools, ED
Notice of open meeting.
This notice sets forth the schedule and proposed agenda of an upcoming open meeting of The Safe and Drug-Free Schools and Communities Advisory Committee. 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 Committee will meet at the U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC.
Catherine Davis, Executive Director, The Safe and Drug-Free Schools and Communities Advisory Committee, Room 1E110B, 400 Maryland Avenue, SW., Washington, DC, telephone: (202) 205-4169, e-mail:
The Committee was established to provide advice to the Secretary on federal, state, and local programs designed to create safe and drug-free schools, and on issues related to crisis planning. The focus of this meeting is to discuss requirements for data under the No Child Left Behind Act. The agenda includes a panel presentation by invited speakers providing an overview of the issue, as well as discussion by the Committee. Further, the Committee will address strategies to accomplish their mission as stated in the Committee charter.
Individuals who need accommodations for a disability in order to attend the meeting (e.g., interpreting services, assistive listening devices, or materials in alternative formats) should notify Catherine Davis at
Individuals interested in attending the meeting must register in advance because limited space is available at the meeting site. Please notify Catherine Davis at
Opportunities for public comment are available on February 21 from 8:40-9:15 a.m. on a first come, first served basis. Comments presented at the meeting are limited to 5 minutes in length. Written comments to accompany oral remarks are optional. Five copies of written comments are recommended and should be submitted to the committee Chairman at the meeting.
Records are kept of all Committee proceedings and available for public inspection at the staff office of the Committee located at the U.S. Department of Education, 400 Maryland Avenue, SW., Room 1E110B, Washington, DC 20202 between the hours of 9 a.m. to 5 p.m.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before April 10, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2004-0015 (part 70 ICR) or EPA-HQ-OAR-2004-0016 (part 71 ICR), by one of the following methods:
•
•
•
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Jeff Herring, Office of Air Quality Planning and Standards, Air Quality Policy Division (C504-05), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-3195; fax number: (919) 541-5509; e-mail address:
The EPA has established public dockets for these ICRs under Docket ID Nos. EPA-HQ-OAR-2004-0015 (part 70 ICR) and EPA-HQ-OAR-2004-0016 (part 71 ICR) which are available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that
EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under
7. To ensure proper receipt by EPA, be sure to identify the docket ID numbers assigned to these actions in the subject line on the first page of your response. You may also provide the name, date, and
The EPA regulations setting forth requirements for the State operating permits programs are at part 70, title 40, chapter I of the Code of Federal Regulations. These are referred to as the “Part 70 Operating Permit Regulations,” which are the subject of one of the ICRs addressed in this notice. The EPA regulations for the Federal operating permits program are at part 71, title 40, chapter I of the Code of Federal
In implementing title V of the Act and EPA's part 70 operating permits regulations, State and local permitting agencies must develop programs and submit them to EPA for approval (section 502(d)), and sources subject to the program must develop operating permit applications and submit them to the permitting authority within 1 year after program approval (section 503). Permitting authorities will then issue permits (section 503(c)) and thereafter enforce, revise, and renew those permits at no more than 5-year intervals (section 502(d)). Permit applications and proposed permits will be provided to, and are subject to review by, EPA (section 505(a)). All information submitted by a source and the issued permit shall also be available for public review except for confidential information which will be protected from disclosure (section 503(e)). Sources will semi-annually submit compliance monitoring reports to the permitting authorities (section 504(a)). The EPA has the responsibility to oversee implementation of the program and to administer a Federal operating permits program in the event a program is not approved for a State (section 502(d)(3)) or if EPA determines the permitting authority is not adequately administering its approved program (section 502(i)(4)). The activities to carry out these tasks are considered mandatory and necessary for implementation of title V and the proper operation of the operating permits program. This notice provides updated burden estimates from previously approved ICRs.
There is an increase of 206 thousand hours in the part 70 total estimated respondent annual burden compared with that identified in the ICR currently approved by OMB. This increase in part 70 burden for sources and permitting authorities is an adjustment due to changes in burden estimates, primarily an increase in permit renewal activities. These changes in burden are not program changes, as no federal mandates, including the part 70 and part 71 regulations, have changed in any way that would affect these ICRs since the last ICR updates.
For the part 71 program, there is a decrease of 22 thousand hours in the total estimated annual burden compared with that identified in the ICR currently approved by OMB. This burden reduction is also an adjustment, due to changes in assumptions, primarily due to a reduction in expected EPA oversight activities for delegated part 71 programs.
The EPA will consider the comments received and amend the ICRs as appropriate. The final ICR packages will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice.
EPA has authorized Systems Research Applications (SRA) Corporation's subcontractor, Logistics Management Institute (LMI) of McLean, VA, to access information which has been submitted to EPA under all sections of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI).
Access to the confidential data will occur no sooner than February 16, 2007.
This action is directed to the public in general. This action may, however, be of interest to those persons who are or may be required to conduct testing of chemical substances under TSCA. 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. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
1.
2.
Under EPA contract number EP-W-05-024, and dependent task orders, subcontractor LMI of 2000 Corporate Ridge, McLean, VA, will assist SRA and the Office of Pollution Prevention and Toxics (OPPT) in implementing OPPT's Target Information Architecture, which involves enterprise architecture documentation, development, requirements analysis, design, testing, change management, and updates to the information management systems that store TSCA CBI data.
In accordance with 40 CFR 2.306(j), EPA has determined that under EPA contract number EP-W-05-024, LMI will require access to CBI submitted to EPA under all sections of TSCA to perform successfully the duties specified under the contract. LMI personnel will be given access to information submitted to EPA under all sections of TSCA. Some of the information may be claimed or determined to be CBI.
EPA is issuing this notice to inform all submitters of information under all sections of TSCA that EPA may provide LMI access to these CBI materials on a need-to-know basis only. All access to TSCA CBI under this contract will take place at EPA Headquarters.
LMI will be authorized access to TSCA CBI at EPA Headquarters under the EPA
Clearance for access to TSCA CBI under this contract may continue until April 14, 2010, unless such access is extended.
LMI personnel will be required to sign nondisclosure agreements and will be briefed on appropriate security procedures before they are permitted access to TSCA CBI.
Environmental protection, Confidential Business Information.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 7, 2006 (71 FR 17845).
Environmental Protection Agency.
Notice of workshop.
The Environmental Protection Agency (EPA) is announcing that a workshop on Assessment of Health Science for the Review of the National Ambient Air Quality Standards (NAAQS) for Nitrogen (NO
The workshop will be held on February 26-28, 2007.
For information regarding registration and logistics for the workshop please contact Kristin Wheeler, SAIC Conference Coordinator at 703-318-4535, facsimile: 703-318-4755, e-mail:
The U.S. Clean Air Act requires EPA to carry out periodic reviews of the NAAQS for major “criteria” air pollutants and to retain or revise the NAAQS for a given pollutant, as appropriate. EPA recently instituted a number of changes to the NAAQS review process to help improve the EPA the efficiency of the process while ensuring that EPA's decisions on the NAAQS are informed by the best science available. As part of the NAAQS reviews NCEA, within EPA's Office of Research and Development (ORD), will assess newly available scientific information in Integrated Science Assessment (ISA) documents (formerly known as Criteria Documents). The ISA will be supported by a more detailed and comprehensive Science Assessment Support Document (SASD). The assessments in these documents will provide the scientific basis for the reviews of the NAAQS. EPA's OAQPS will prepare risk and exposure assessment analyses, as appropriate, drawing upon the scientific evidence summarized in the ISA. Subsequently, the EPA will prepare a policy assessment that discusses, in part, the findings of the science and risk/exposure assessments related to the adequacy of the standards and describes a range of options for revising or retaining the NAAQS.
NCEA is holding this workshop to inform the Agency's assessment process of the existing scientific evidence for the review of the NAAQS for the criteria pollutants NO
A second workshop will be announced in the next several months to discuss environmental effects related to the review of the NAAQS for NO
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a
The meeting dates are Thursday, February 22, 2007, from 8:30 a.m. to 5:30 p.m. through Friday, February 23, 2007, from 8:30 a.m. to 3 p.m. (Eastern Time).
The meeting will be held in Suite 3700 of the U.S. Environmental Protection Agency Science Advisory Board Conference Center; 1025 F Street, NW., Washington, DC 20004, phone (202) 343-9999.
Members of the public who wish to obtain further information about this meeting may contact Mr. Thomas O. Miller, Designated Federal Officer (DFO) by mail at: Science Advisory Board Staff Office, (1400F), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone at (202) 343-9982; fax at (202) 233-0643; or e-mail at:
The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice, consultation, and recommendations to the EPA Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal advisory committee chartered under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
Environmental Protection Agency (EPA).
Solicitation of recommendations and comments.
This Notice is a Federal Agency request for the public to comment and provide recommendations on triennial national enforcement and compliance assurance priorities to be addressed for fiscal years 2008, 2009 and 2010. EPA intends to consider information submitted by commentors during the priority identification process. Final priority selections are generally incorporated into the EPA's Office of Enforcement and Compliance Assurance Workplanning Guidance (which provides national program direction for all EPA Regional offices). These priorities also affect implementation of the enforcement and compliance goals and objectives outlined in the EPA Strategic Plan, as mandated under the Government Performance and Results Act.
The Agency must receive comments and recommendations in writing on or before March 12, 2007.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2007-0066, electronically using
Nicholas Franco, Director, National Planning Measures and Analysis Staff; telephone: (202) 564-0113 or facsimile: (202) 564-0027.
EPA's Office of Enforcement and Compliance Assurance (OECA) selects multi-year national priorities focusing on specific environmental problems, risks, or patterns of noncompliance. A performance-based strategy is developed for each national priority to characterize
This past summer, EPA Regions were asked to review the national priority selection criteria to help inform their recommendations on which priorities, in part or in whole, EPA should continue through FY 2010. In addition, the EPA Regions discussed the priorities with the states and tribes, to get their opinion on whether the existing priorities should be continued, in part or in whole, for the next three fiscal years.
States and tribes were also encouraged to put forward any new suggestions for priorities that they would like to see considered at a national level. Feedback to date from EPA Regions, states and tribes has been generally supportive of continuing with the existing set of national priorities. OECA uses the following criteria to select national priorities:
(a)
(b)
(c)
The proposed set of FY 2008-2010 national priorities are shown below.
• Clean Water Act—Stormwater.
• Clean Water Act—Combined Sewer Overflow.
• Clean Water Act—Sanitary Sewer Overflow.
• Clean Water Act—Concentrated Animal Feeding Operations.
• Clean Air Act—New Source Review/Prevention of Significant Deterioration.
• Clean Air Act—Air Toxics.
• RCRA & CERCLA—Financial Assurance.
• RCRA—Mining & Mineral Processing.
• Tribal.
The FY 2005-2007 Petroleum Refining priority will not continue into FY 2008-2010 as a national priority. The priority has met its primary goal of addressing 80% of the national refining capacity. It is important to note that discontinuation as a national priority does not mean that the Agency will no longer focus on these areas, but rather the work will continue as part of the Agency's core program activities.
The table below includes a brief description of the environmental problem in each priority area. Greater detail and background information on each priority area can be found at
At this time we are inviting comments on this list of national priorities and welcome recommendations on other areas that you think should be considered as national priority candidates. EPA intends to consider public comments as we develop a limited number of recommended FY 2008-2010 priorities. When submitting responses to this Notice, commentors should rank which of the areas listed above should be a top concern for national focus, as well as suggest others not included on the current list. If additional problem areas are identified, the commentor should provide supporting information relating to the previously listed criteria. Suggested priority areas that are not chosen may be candidates for individual Regional or State attention and/or continued investigation. Direct your comments to Docket ID No. EPA-HQ-OECA-2007-0066. Please ensure that your comments are submitted within the specified comment period. Comments received after the closing date will be marked “late,” and may only be considered if time permits. It is EPA's policy to include all comments it receives in the public docket without change and to make the comments available online at
After receiving comments in response to this Notice, we expect to complete an analysis of proposed priorities and provide a list of final recommendations to OECA's Assistant Administrator for approval. EPA will share the final recommendations with the Regions, states and tribes in a subsequent
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Plantation Heat Treatment Superfund Site in North Providence, Rhode Island, with the following settling party: Theta Properties, Inc. The settlement requires the settling party to pay $175,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling party pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at EPA Records Center, 1 Congress Street, Suite 1100, Boston, Massachusetts.
Comments must be submitted on or before March 12, 2007.
The proposed settlement is available for public inspection at EPA Records Center, 1 Congress Street, Suite 1100, Boston, Massachusetts. A copy of the proposed settlement may be obtained from Sharon C. Fennelly, EPA Region 1, 1 Congress Street, Suite 1100 (HBR), Boston, Massachusetts 02114, 617 918-1263. Comments should refer to the Plantation Heat Treatment Superfund Site, North Providence, Rhode Island, and U.S. EPA Region 1 CERCLA Docket No. 01-2007-0040 and should be addressed to Sharon C. Fennelly.
Sharon C. Fennelly, EPA Region 1, 1 Congress Street, Suite 1100 (HBR), Boston, Massachusetts 02114, 617 918-1263.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 5, 2007.
Board of Governors of the Federal Reserve System, February 5, 2007.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 8, 2007.
Board of Governors of the Federal Reserve System, February 6, 2007.
Public Buildings Service, GSA.
Notice of Availability.
The General Services Administration (GSA) announces its intent to distribute a Final Environmental Impact Statement (Final EIS) under the National Environmental Policy Act (NEPA) of 1969, as amended, 42 U.S.C. 4321—4347 (NEPA) to assess the potential impacts of the construction of a New Border Station Facility in Madawaska, Maine (the “Proposed Action”). At the request of Customs and Border Protection (CBP), the GSA is proposing to construct a new border station facility which meets their needs, and the design requirements of the GSA.
The existing facilities are undersized and obsolete, and consequently incapable of providing the level of security now required. The Proposed Action has been defined and includes: (a) Identification of land requirements, including acquisition of adjoining land; (b) demolition of existing government structures at the border station; (c) construction of a main administration building and ancillary support buildings; and (d) consequent potential alterations to secondary roads.
Studied alternatives have identified alternative locations for the components of the border station including the main administration and ancillary support buildings, the associated roadway
Following this thirty (30) day notice in the
GSA will distribute ten reading copies of the Final EIS at both the Middle / High School Library located on 135 Seventh Avenue in Madawaska and the Madawaska Library located on 393 Main Street.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
The Department of Health and Human Services (HHS) gives notice as required by 42 CFR 83.12(e) of a decision to evaluate a petition to designate a class of employees at the Nuclear Materials and Equipment Corp. (NUMEC)—Apollo, Apollo, Pennsylvania, to be included in the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000. The initial proposed definition for the class being evaluated, subject to revision as warranted by the evaluation, is as follows:
Larry Elliott, Director, Office of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 513-533-6800 (this is not a toll-free number). Information requests can also be submitted by e-mail to
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
The Department of Health and Human Services (HHS) gives notice as required by 42 CFR 83.12(e) of a decision to evaluate a petition to designate a class of employees at the Y-12 Plant in Oak Ridge, Tennessee, to be included in the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000. The initial proposed definition for the class being evaluated, subject to revision as warranted by the evaluation, is as follows:
Larry Elliott, Director, Office of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 513-533-6800 (this is not a toll-free number). Information requests can also be submitted by e-mail to
Agency for Healthcare Research and Quality, Department of Health and Human Services.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) allow the proposed information collection project: “Pilot Study of Proposed Medical Office Surveys on Patient Safety.” In accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by March 12, 2007.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, 540 Gaither Road, Room #5036, Rockville, MD 20850, or by e-mail at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from AHRQ's Reports Clearance Officer.
Doris Lefkiwitz, AHRQ, Reports Clearance Officer, (301) 427-1477.
“Pilot Study of Proposed Medical Office Surveys on Patient Safety”
This activity is an expansion and refinement of AHRQ's Hospital Survey on Patient Safety Culture (HSOPSC) which was developed and released to the public for use in November 2004. Two new surveys are proposed to assess patient safety culture in outpatient medical office settings: one for clinicians (physicians, physician assistants, and nurse practitioners who diagnose, prescribe for, and treat patients) and one for medical office staff (all other non-clinician staff). The proposed new surveys will be based on the HSOPSC but also contain new and revised items as well as dimensions that are more applicable to the outpatient medical office setting. The two proposed surveys will contain some items that are the same and some items that are unique to each survey.
The instruments will be pilot tested with clinicians and staff working in 97 outpatient medical offices. The data collected will be analyzed to determine the psychometric properties of each survey's items and dimensions and provide information for the revision and shortening of the final surveys based on an assessment of their reliability and construct validity. The final surveys will be made publicly available to enable outpatient medical offices to assess patient safety culture from the perspectives of their clinicians and staff. The surveys can be used by outpatient medical offices to identify areas for patient safety culture improvement.
A purposive sample of 97 outpatient medical offices will be recruited and selected. These medical offices will represent a distribution of single-specialty offices (of various types) and multi-specialty offices, and will vary by office size (based on number of physicians in the office), as well as geographic region of the United States. Recruited medical offices will be allocated to each category in numbers roughly proportionate to the national distribution of offices in each category.
All clinicians in each medical office will be asked to respond to the clinician survey and all other non-clinician staff will be asked to complete the medical office staff survey. Since not all medical office staff have access to e-mail or the internet, paper surveys will be administered. Standard non-response follow-up techniques such as reminder postcards and distribution of a second survey will be used. Individuals and organizations contacted will be assured of the confidentiality of their replies under Section 924(c) of the Healthcare Research and Quality Act of 1999.
Paper surveys will be distributed to a total of approximately 2,340 individuals from 97 medical offices (about 592 clinicians and 1,748 medical office staff), with a target response rate of 70%, or 1,638 completed surveys (414 completed clinician surveys and 1,224 medical office staff surveys). Respondents should take approximately 15 minutes to complete either survey. Therefore, we estimate that the total respondent burden for completing the survey will be 410 hours (414 completed clinician surveys multiplied by 0.25 hours per survey or 104 hours; and 1,224 completed medical office staff surveys multiplied by 0.25 hours per survey or 306 hours).
The total cost to the Government for developing the clinician survey is approximately $257,000, and for the medical office staff survey is approximately $268,000. These estimates include the costs of background literature reviews, survey development, cognitive testing, pilot data collection, data analysis, and preparation of final deliverables and reports.
In accordance with the above-cited Paperwork Reduction Act legislation, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Aggregate Reports for Tuberculosis Program Evaluation (OMB No. 0920-0457)—Extension—National Center for HIV, STD, and TB Prevention (NCHSTP), Centers for Disease Control and Prevention (CDC).
CDC, National Center for HIV, STD, and TB Prevention, Division of Tuberculosis Elimination (DTBE) proposes to continue the Aggregate Reports for Tuberculosis Program Evaluation, previously approved under OMB No. 0920-0457. This request is for a 3-year clearance. There are no revisions to the report forms, data definitions, or reporting instructions. DTBE is the lead agency for tuberculosis elimination in the United States.
To ensure the elimination of tuberculosis in the United States, CDC monitors indicators for key program activities, such as finding tuberculosis infections in recent contacts of cases and in other persons likely to be infected and providing therapy for latent tuberculosis infection. In 2000, CDC implemented two program evaluation reports for annual submission: Aggregate report of follow-up for contacts of tuberculosis, and Aggregate report of screening and preventive therapy for tuberculosis infection (OMB No. 0920-0457). The respondents for these reports are the 68 State and local tuberculosis control programs receiving Federal cooperative agreement funding through DTBE. These reports emphasize treatment outcomes, high-priority target populations vulnerable to tuberculosis, and programmed electronic report entry and submission through the Tuberculosis Information Management System (TIMS). No other federal agency collects this type of national tuberculosis data, and the Aggregate report of follow-up for contacts of tuberculosis, and Aggregate report of screening and preventive therapy for tuberculosis infection are the only data source about latent tuberculosis infection for monitoring national progress toward tuberculosis elimination with these activities. CDC provides ongoing assistance in the preparation and utilization of these reports at the local and State levels of public health jurisdiction. CDC also provides respondents with technical support for the TIMS software (Electronic—100%, Use of Electronic Signatures—No). The annual burden to respondents is estimated to be 226 hours. There is no cost to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
CDC Oral Health Management Information System—New—Division of Oral Health (DOH), National Center for Chronic Disease Prevention and Public Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The CDC seeks to improve the oral health of the nation by targeting efforts to improve the infrastructure of state and territorial oral health departments, strengthen and enhance program capacity related to monitoring the population's oral health status and behaviors, develop effective programs to improve the oral health of children and adults, evaluate program accomplishments, and inform key stakeholders, including policy makers, of program results. Through a cooperative agreement program (Program Announcement 03022), CDC provides approximately $3 million per year over 5 years to 12 states and one territory to strengthen the state's core oral health infrastructure and capacity and reduce health disparities among high-risk groups. The CDC is authorized to do this under sections 301 and 317(k) of the Public Health Service Act [42 U.S.C. 241 and 247b(k)].
NCCDPHP is currently pursuing a key initiative to improve the efficiency and effectiveness of CDC project officers who oversee the State and territorial oral health programs by developing an information system to support program management, consulting and evaluation. Information systems provide a central repository of information, such as the plans of the State or territorial oral health programs (their goals, objectives, performance milestones and indicators), as well as state and territorial oral health performance activities including programmatic and financial information.
There are no costs to the respondents other than their time. The total estimated annualized burden hours are 234.
Center for Medicare and Medicaid Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
We are, however, requesting an emergency review of the information collection referenced below. In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we have submitted to the Office of Management and Budget (OMB) the following requirements for emergency review. We are requesting an emergency review because the collection of this information is needed before the expiration of the normal time limits under OMB's regulations at 5 CFR Part 1320. This is necessary to ensure compliance with an initiative of the Administration. CMS does not have sufficient time to complete the normal PRA clearance process while making corrections and enhancements to the software and ensuring that organizations have ample time to complete and submit their tools by the statutory deadline in June 2007. The normal PRA clearance process would result in violating this statutory deadline which would prevent Medicare Advantage (MA) and Prescription Drug Plan (PDP) organizations from providing benefits to millions of Medicare beneficiaries.
CMS is requesting to continue its use of the Plan Benefit Package software, formulary and Bid Pricing Tool for the collection of benefits, pricing and related information for CY 2008 as part of the annual bidding process.
1.
2.
CMS is requesting OMB review and approval of these collections by
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
Interested persons are invited to send comments regarding the burden or any other aspect of these collections of information requirements. However, as noted above, comments on these information collection and recordkeeping requirements must be mailed and/or faxed to the designees referenced below by
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Colorado (FEMA-3270-EM), dated January 7, 2007, and related determinations.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of an emergency declaration for the State of Colorado is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared an emergency by the President in his declaration of January 7, 2007:
Teller County for emergency protective measures (Category B), including snow removal, under the Public Assistance program for any continuous 48-hour period during or proximate to the incident period.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Nebraska (FEMA-1674-DR), dated January 7, 2007, and related determinations.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Nebraska is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of January 7, 2007:
Butler County for Public Assistance.
Deuel County for Public Assistance Categories A and B (debris removal and emergency protective measures.)
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA-1678-DR), dated February 1, 2007, and related determinations.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated February 1, 2007, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Oklahoma resulting from severe winter storms during the period of January 12-26, 2007, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Oklahoma.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance and Hazard Mitigation in the designated areas, and any other forms of assistance under the Stafford Act you may deem appropriate. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under Section 408 of the Stafford Act is later warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs. Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Director, under Executive Order 12148, as amended, Kenneth Clark, of FEMA, is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Oklahoma to have been affected adversely by this declared major disaster:
Delaware, McIntosh, Muskogee, and Pittsburg Counties for Public Assistance, including direct Federal assistance, if warranted.
The counties of Adair, Atoka, Bryan, Cherokee, Choctaw, Coal, Cotton, Craig, Delaware, Haskell, Hughes, Johnston, Latimer, Mayes, McIntosh, Muskogee, Okfuskee, Okmulgee, Ottawa, Pittsburg, Seminole, Sequoyah, and Wagoner within the State of Oklahoma are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA-1677-DR), dated February 1, 2007, and related determinations.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated February 1, 2007, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Oklahoma resulting from a severe winter storm during the period of December 28-30, 2006, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance limited to debris removal (Category A), emergency protective measures (Category B), and utilities (Category F) in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act you may deem appropriate. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs. Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Director, under Executive Order 12148, as amended, Kenneth Clark, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Oklahoma to have been affected adversely by this declared major disaster:
Beaver, Cimarron, and Texas Counties for debris removal (Category A), emergency protective measures (Category B), and utilities (Category F), under the Public Assistance program, including direct Federal assistance, if warranted.
All counties within the State of Oklahoma are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The information is used by HUD to determine whether State, local and tribal agencies administering HUD programs are properly performing labor standards responsibilities delegated to the respective agency by HUD.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2501-NEW) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The information collected by HUD is used to issue refunds to depositors where labor standards discrepancies have been resolved, and to issue wage restitution payments on behalf of construction and maintenance workers who have been underpaid for work performed on HUD-assisted projects subject to prevailing wage requirements.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2501-0021) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This notice also lists the following information:
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Project owners are permitted to retain Excess Income for projects under terms and conditions established by HUD. Owners must submit a written request to retain some or all of their Excess Income. The request must be submitted at least 90 days before the beginning of each fiscal year, or 90 days before any other time during a fiscal year that the owner plans to begin retaining excess income for that fiscal year. HUD uses the information to ensure that required excess rents are remitted to the Department and/or retained by the owner.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB
Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This notice also lists the following information:
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Project owners are required to submit this information and required supporting documentation when requesting a withdrawal for funds from the Reserves for Replacement and/or Residual Receipt Funds. HUD reviews this information to ensure that funds are withdrawn and used in accordance with regulatory and administrative policy.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Approval Number (2502-0555) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notices.
HUD gives notice to the public, agencies, and Indian tribes of the availability of the Draft Environmental Impact Statement (DEIS) for review and comment for the East River Waterfront Esplanade and Piers Project in the Borough of Manhattan, City of New York, New York (Proposed Action). Included also are the Notice of Public Hearing and the Notice of Availability of National Historic Preservation Act Draft Programmatic Agreement. This notice also serves as a Notice of Intent to prepare a DEIS for the Proposed Action. The DEIS and related notices were prepared by the Lower Manhattan Development Corporation, acting under its authority as the Responsible Entity for compliance with the National Environmental Policy Act of 1969 (NEPA) in accordance with 24 CFR 58.4. The Draft EIS has been prepared to satisfy the requirements of NEPA. The EIS and NEPA process also address historic preservation and cultural resource issues under section 106 of the National Historic Preservation Act (16 U.S.C. 470f). This notice is given in accordance with the Council on Environmental Quality regulations at 40 CFR parts 1500-1508. The Lower Manhattan Development Corporation (LMDC), a subsidiary of the Empire State Development Corporation (a political subdivision and public benefit corporation of the State of New York), is the lead agency. The City of New York is a cooperating agency.
Written comments on the DEIS and draft Programmatic Agreement may be submitted to LMDC but must be received by LMDC by 5 p.m. on March 19, 2007, or they will not be considered. Comments should be directed to Lower Manhattan Development Corporation, Attention: East River Waterfront Esplanade and Piers Project; One Liberty Plaza; New York, NY 10006; Telephone: (212) 962-2300; Fax: (212) 962-2431.
A public hearing on the DEIS, where comments on the DEIS may be submitted, has been scheduled for March 5, 2007. The hearing will take place from 4:30 p.m. to 8 p.m. at Pace University, Multipurpose Room, One Pace Plaza, B Level, Spruce Street Entrance, New York, NY 10037. The public hearing location is accessible to the mobility impaired; interpreter services will be available upon request. The public hearing will also serve as an opportunity for the public and interested persons to comment on the draft Programmatic Agreement for the Proposed Action that has been prepared pursuant to Section 106 of the National Historic Preservation Act and is included in the DEIS.
Requests for information about the Proposed Action or copies of the DEIS can also be directed to the LMDC: Victor J. Gallo (212) 962-2300; e-mail:
The Proposed Action would improve a two mile portion of the East River waterfront in Manhattan and create a City-owned public open space. The area of the Proposed Action would generally encompass the waterfront, the upland area adjacent to and under the elevated Franklin Delano Roosevelt Drive and South Street extending from the Whitehall Ferry Terminal and Peter Minuit Plaza on the South to East River Park on the North, as well as Pier 15, the New Market Building pier, Pier 35, Pier 36, and Pier 42. Approximately $139,500,000 of HUD funds will be allocated for the Proposed Action.
The DEIS analyzes the Proposed Action's potential impacts on Land Use, Zoning, and Public Policy; Socioeconomic Conditions; Open Space; Shadows; Historic Resources; Urban Design and Visual Resources; Neighborhood Character; Natural Resources and Floodplain Impacts; Hazardous Materials; Waterfront Revitalization; Infrastructure, Solid Waste and Energy; Traffic and Transportation; Air Quality; Noise; Construction Impacts; and Environmental Justice. The DEIS considers a reasonable range of alternatives including a no action alternative, esplanade development alternatives, Battery Maritime Building plaza alternatives, an alternative without the BMB plaza and the Pier 42 beach, alternative in-water configurations south of Pier 15, and an alternative retaining a portion of the automobile parking beneath the FDR Drive.
A Notice of Intent, Notice of Public Scoping Meeting and Public Comment Period, and other related notices were previously published in the New York Environmental Notice Bulletin, AM New York, the New York Post, Hoy and Sing Tao on March 22, 2006. Although the Notice of Intent was not published in the
This notice has been prepared by LMDC. The certifying officer is LMDC's chairman, Kevin M. Rampe. Questions may be directed to the individual named in this notice under the heading
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, room 7262, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; telephone (202) 708-1234; TDD number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD reviewed in 2006 for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property.
In accordance with 24 CFR part 581.3(b) landholding agencies are required to notify HUD by December 31, 2006, of the current availability status and classification of each property controlled by the Agencies that were published by HUD as suitable and available which remain available for application for use by the homeless.
Pursuant to 24 CFR part 581.8(d) and (e) HUD is required to publish a list of those properties reported by the Agencies and a list of suitable/unavailable properties including the reasons why they are not available.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to John Hicks, Division of Property Management, Program Support Center, HHS, room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses:
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice announces changes in the interest rates to be paid on debentures issued with respect to a loan or mortgage insured by the Federal Housing Administration under the provisions of the National Housing Act (the Act). The interest rate for debentures issued under section 221(g)(4) of the Act during the 6-month period beginning January 1, 2007, is 4
Darryl E. Getter, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 2232, Washington, DC 20410-8000; telephone (202) 402-7541 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Section 224 of the National Housing Act (12 U.S.C. 1715o) provides that debentures issued under the Act with respect to an insured loan or mortgage (except for debentures issued pursuant to section 221(g)(4) of the Act) will bear interest at the rate in effect on the date the commitment to insure the loan or mortgage was issued, or the date the loan or mortgage was endorsed (or initially endorsed if there are two or more endorsements) for insurance, whichever rate is higher. This provision is implemented in HUD's regulations at 24 CFR 203.405, 203.479, 207.259(e)(6), and 220.830. These regulatory provisions state that the applicable rates of interest will be published twice each year as a notice in the
Section 224 further provides that the interest rate on these debentures will be set from time to time by the Secretary of HUD, with the approval of the Secretary of the Treasury, in an amount not in excess of the annual interest rate determined by the Secretary of the Treasury pursuant to a statutory formula based on the average yield of all outstanding marketable Treasury obligations of maturities of 15 or more years.
The Secretary of the Treasury (1) has determined, in accordance with the provisions of section 224, that the statutory maximum interest rate for the period beginning January 1, 2007, is 4
For convenience of reference, HUD is publishing the following chart of debenture interest rates applicable to mortgages committed or endorsed since January 1, 1980:
Section 215 of Division G, Title II of Pub. L. 108-199, enacted January 23, 2004 (HUD's 2004 Appropriations Act) amended section 224 of the Act, to change the debenture interest rate for purposes of calculating certain insurance claim payments made in cash. Therefore, effective immediately, for all claims paid in cash on mortgages insured under section 203 or 234 of the National Housing Act and endorsed for insurance after January 23, 2004, the debenture interest rate will be the monthly average yield, for the month in which the default on the mortgage occurred, on United States Treasury Securities adjusted to a constant maturity of 10 years, as found in Federal Reserve Statistical Release H-15. The Federal Housing Administration has codified this provision in HUD regulations at 24 CFR 203.405(b) and 24 CFR 203.479(b).
Section 221(g)(4) of the Act provides that debentures issued pursuant to that paragraph (with respect to the assignment of an insured mortgage to the Secretary) will bear interest at the “going Federal rate” in effect at the time the debentures are issued. The term “going Federal rate” is defined to mean the interest rate that the Secretary of the Treasury determines, pursuant to a statutory formula based on the average yield on all outstanding marketable Treasury obligations of 8-to 12-year maturities, for the 6-month periods of January through June and July through December of each year. Section 221(g)(4) is implemented in the HUD regulations at 24 CFR 221.255 and 24 CFR 221.790.
The Secretary of the Treasury has determined that the interest rate to be borne by debentures issued pursuant to section 221(g)(4) during the 6-month period beginning January 1, 2007, is 4
HUD expects to publish its next notice of change in debenture interest rates in July 2007.
The subject matter of this notice falls within the categorical exemption from HUD's environmental clearance procedures set forth in 24 CFR
Fish and Wildlife Service, Interior.
Notice of teleconference.
We, the Fish and Wildlife Service, announce a public teleconference of the Sport Fishing and Boating Partnership Council (Council).
We will hold the teleconference on Tuesday, February 20, 2007, from 3 p.m. to 5 p.m. (Eastern Time). Members of the public wishing to participate in the teleconference must notify Douglas Hobbs by close of business on Friday, February 16, 2007, per instructions under the
Council Coordinator, 4401 North Fairfax Drive, Mailstop 3103-AEA, Arlington, VA 22203.
Doug Hobbs (see
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we give notice that the Sport Fishing and Boating Partnership Council will hold a teleconference on Tuesday, February 20, 2007, from 3 p.m. to 5 p.m.
The Council was formed in January 1993 to advise the Secretary of the Interior, through the Director, U.S. Fish and Wildlife Service, about sport fishing and boating issues. The Council represents the interests of the public and private sectors of the sport fishing and boating communities and is organized to enhance partnerships among industry, constituency groups, and government. The 18-member Council, appointed by the Secretary of the Interior, includes the Director of the Service and the president of the International Association of Fish and Wildlife Agencies, who both serve in ex officio capacities. Other Council members are Directors from State agencies responsible for managing recreational fish and wildlife resources and individuals who represent the interests of saltwater and freshwater recreational fishing, recreational boating, the recreational fishing and boating industries, recreational fisheries resource conservation, aquatic resource outreach and education, and tourism. Background information on the Council is available at
The Council will convene to: (1) Approve recommendations to the Director of the Fish and Wildlife Service for funding Fiscal Year 2007 Boating Infrastructure Grant proposals; and (2) Be briefed on a Fish and Wildlife Service proposal related to combining some or all functions of the Fisheries and Habitat Conservation program and the Endangered Species program. The final agenda will be posted on the Internet at
Interested members of the public may submit relevant written or oral information for the Council to consider during the public teleconference. Questions from the public will not be considered during this period. Speakers who wish to expand upon their oral statements or those who had wished to speak but could not be accommodated on the agenda are invited to submit written statements to the Council.
Individuals or groups requesting an oral presentation at the public Council teleconference will be limited to 3 minutes per speaker, with no more than a total of one-half hour for all speakers. Interested parties should contact Douglas Hobbs, Council Coordinator, in writing (preferably via e-mail), by Friday, February 16, 2007, at the contact information under
Summary minutes of the conference will be maintained by the Council Coordinator at 4401 N. Fairfax Drive, MS-3101-AEA, Arlington, VA 22203, and will be available for public inspection during regular business hours within 30 days following the meeting. Personal copies may be purchased for the cost of duplication.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321
To assure that they will be considered, BLM must receive written comments on the Draft RMP/EIS within 90 days following the date the Environmental Protection Agency publishes their Notice of Availability in the
The Draft RMP/EIS will be posted on the Internet at
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•
•
Jeremy Casterson, Planning and
The planning area is located in Northwest Colorado in Moffat, Routt, and Rio Blanco Counties. The plan will provide a framework to guide subsequent management decisions on approximately 1.3 million acres of BLM-administered public lands and 1.1 million acres of subsurface mineral estate administered by the BLM. Little Snake Field Office is currently being managing under its 1989 RMP, which has been amended for Oil and Gas Leasing (1991), Black-Footed Ferret Reintroduction (1996) and Land Health Standards (1997).
The Little Snake Field Office has worked extensively with the community, interested and affected publics, and cooperating agencies in development of the Draft RMP/EIS. An independent local citizen-based stewardship group, the Northwest Colorado Stewardship (NWCOS), has been very engaged in the RMP revision. NWCOS has provided input on issues that will be addressed in the planning process, the range of alternatives and the impact analysis. Cooperating agencies include Moffat County, Colorado Department of Natural Resources, U.S. Fish and Wildlife Service Division of Ecological Services, the City of Steamboat Springs and the Juniper Water Conservancy District.
The Draft RMP/EIS addresses many issues important to the area, including energy development, special designations, transportation and travel management, wildlife habitat and socio-economic values. Four alternatives were analyzed in the Draft RMP/EIS.
Alternative A would maintain present uses by continuing present management direction and activities. Mineral and energy development and unrestricted off-highway vehicle (OHV) travel would be allowed throughout a majority of the planning area.
Alternative B would allow the greatest extent of resource use within the planning area, while maintaining the basic protection needed to sustain resources. Under this alternative, constraints on commodity production for the protection of sensitive resources would be the least restrictive possible within the limits defined by law, regulation and BLM policy.
Alternative C, the Preferred Alternative, would emphasize multiple resource use in the planning area by protecting sensitive resources and applying the most current information that allows BLM to set priorities for flexible, proactive management of public lands (adaptive management). Commodity production would be balanced with providing protection for wildlife and vegetation.
Alternative D would allow the greatest extent of resource protection within the planning area, while still allowing resource uses. Commodity production would be constrained to protect natural resource values or to accelerate improvement in their condition.
In the preferred alternative, Alternative C, Irish Canyon is designated as an Area of Critical Environmental Concern (ACEC). The ACEC objective would be to protect sensitive plants, remnant plant communities, cultural and geologic values, and scenic quality. The area would be closed to oil and gas leasing, limited to designated routes for off-highway vehicles, withdrawn from locatable mineral entry, managed as Visual Resource Management Class II, and Right-of-way exclusion area unless associated with valid existing rights.
ACEC proposals which were determined to meet the relevance and importance criteria but not designated ACECs in the preferred alternative because they were deemed not to warrant special management attention include Lookout Mountain, Limestone Ridge, Cross Mountain Canyon, White-tailed Prairie Dog habitat, and eleven areas proposed to protect sensitive plants and plant communities: Cold Desert Shrublands occurrences, Gibben's Beardtongue occurrences, Bull Canyon, G Gap, Little Juniper Canyon, the Bassett Spring, No Name Spring, Pot Creek, Whiskey Springs, Willow Spring, and Deception Creek.
All submissions will be available for public inspection in their entirety. Copies of the Little Snake Draft RMP/EIS are available in the Little Snake Field Office at the above address during regular business hours 7:45 a.m. to 4:30 p.m., Monday through Friday, except holidays.
This document was received at the Office of the Federal Register on February 6, 2007.
Bureau of Reclamation, Interior.
Notice of Availability of Supplemental Draft Environmental Impact Statement (SDEIS) and Announcement of Public Hearings.
The Bureau of Reclamation published a notice in the
A 45-day public review period begins with the publication of this notice and ends on March 26, 2007. All comments on the Supplemental DEIS must be received by Reclamation on or before March 26, 2007 at the address provided below.
• February 27, 2007, 7 p.m., Bismarck, ND
• February 28, 2007, 7 p.m., Fargo, ND
• March 1, 2007, 7 p.m., Fort Yates, ND
• March 2, 2007, 7 p.m., Fort Berthold (New Town), ND
Send comments on the Supplemental DEIS to: Red River Valley Water Supply Project EIS, Bureau of Reclamation, Dakotas Area Office, P.O. Box 1017, Bismarck, ND 58502.
• Bismarck, ND, Best Western Doublewood Inn, 1400 Interchange Ave., 58501.
• Fargo, ND, Ramada Plaza Suites and Conference Center, Brahms Room, 1635 42nd Street SW., 58103.
• Fort Yates, ND, Prairie Knights Casino and Resort, 7932 Highway 24, 58538-9736.
• New Town, ND, 4 Bears Casino and Lodge, Hidatsa/Arikara Room, 202 Frontage Road, 58763.
Ms. Signe Snortland, telephone: (701) 250-4242 extension 3619, or FAX to (701) 250-4326. You may submit e-mail comments to
The Supplemental DEIS is available for public inspection at the following locations:
• Des Moines Public Library, 100 Locust Street, Des Moines, IA.
• Topeka and Shawnee County Public Library, 1515 SW 10th Street, Topeka, KS.
• Breckenridge Public Library, 205 7th Street North, Breckenridge, MN.
• East Grand Forks Library, 422 4th Street Northwest, East Grand Forks, MN.
• Moorhead Public Library, 118 5th Street South, Moorhead, MN.
• Perham Public Library, 225 2nd Ave. NE, Perham, MN.
• Red Lake Band of Chippewa Indians, PO Box 550, Red Lake, MN.
• St. Paul Public Library, 90 West 4th Street, St. Paul, MN.
• Warroad City Library, 202 Main Ave. NW, Warroad, MN.
• White Earth Reservation, 26246 Crane Road, White Earth, MN.
• Kansas City Public Library, 14 West 10th Street, Kansas City, MO
• Missouri River Regional Library, 214 Adams Street, Jefferson City, MO
• Bureau of Reclamation, Great Plains Regional Office, 316 N. 26th Street, Billings, MT.
• Lincoln City Libraries, 136 South 14th Street, Lincoln, NE.
• Alfred Dickey Public Library, 105 3rd Street SE, Jamestown, ND.
• Bureau of Indian Affairs, Turtle Mountain Agency, PO Box 60, Highway 5 West, Belcourt, ND.
• Bureau of Indian Affairs, Fort Berthold Agency, 202 Main Street, New Town, ND.
• Bureau of Indian Affairs, Fort Totten Agency, PO Box 270 / Main Street, Fort Totten, ND.
• Bureau of Reclamation, Dakotas Area Office, 304 E. Broadway Ave., Bismarck, ND.
• Fargo Public Library, 102 3rd Street North, Fargo, ND.
• Garrison Diversion Conservancy District, 401 Highway 281 NE, Carrington, ND.
• Grand Forks Public Library, 2110 Library Circle, Grand Forks, ND.
• Leach Public Library, 417 2nd Ave. North, Wahpeton, ND.
• North Dakota State Library, 603 East Blvd. Ave., Bismarck, ND.
• Standing Rock Administrative Service Center, Bldg. #1, North Standing Rock Avenue, Fort Yates, ND.
• West Fargo Public Library, 109 3rd Street East, West Fargo, ND.
• Bureau of Indian Affairs, Sisseton Agency, Veterans Memorial D, Agency Village, SD.
• South Dakota State Library, 800 Governors Drive, Pierre, SD.
• Millennium Library, 251, Donald Street, Winnipeg, Manitoba, Canada.
• Kenora Branch Library, 24 Main Street South, Kenora, Ontario, Canada.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to reverse-in-part the presiding administrative law judge's (“ALJ's”) final initial determination of October 24, 2003, in the above-captioned investigation and has determined that the patents in issue are not unenforceable for patent misuse. Having found a violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-captioned investigation, the Commission has issued a general exclusion order and cease and desist orders directed to four domestic respondents, and has terminated the investigation. In its discretion, the Commission has also determined to grant Philips' motion for leave to reply and to deny respondents' request to reopen the record for further discovery.
Clara Kuehn, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3012. Copies of the Commission's orders, the public version of its opinion, the public version of the ALJ's ID, and all other non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on July 26, 2002, based on a complaint filed by U.S. Philips Corporation of Tarrytown, New York (“Philips” or “complainant”). 67 FR 48,948 (2002). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain recordable compact discs and rewritable compact discs by reason of infringement of certain claims of six U.S. patents: claims 1, 5, and 6 of U.S. Patent No. 4,807,209; claim 11 of U.S. Patent No. 4,962,493; claims 1, 2, and 3 of U.S. Patent No. 4,972,401; claims 1, 3, and 4 of U.S. Patent No. 5,023,856; claims 1-5, and 6 of U.S. Patent No. 4,999,825; and claims 20, 23-33, and 34 of U.S. Patent No. 5,418,764. 67 FR 48,948 (2002).
The notice of investigation named 19 respondents, including Gigastorage Corporation Taiwan of Hsinchu, Taiwan; Gigastorage Corporation USA of Livermore, California (collectively, “Gigastorage”); Linberg Enterprise Inc. (“Linberg”) of West Orange, New Jersey; and DiscsDirect.Com of Campbell, California. 67 FR. 48,948 (2002). On August 14, 2002, the ALJ issued an initial determination (ALJ Order No. 2) granting a motion to intervene as respondents by Princo Corporation of Hsinchu, Taiwan, and Princo America Corporation of Fremont, California (collectively, “Princo”). The Commission determined not to review Order No. 2.
On October 24, 2003, the ALJ issued his final initial determination (“ID”) of no violation of section 337. When the ID issued, Gigastorage, Linberg, and Princo (collectively, “respondents”) were the only remaining active respondents in the investigation. See ALJ Order No. 6 (an unreviewed initial determination terminating eight respondents on the basis of a consent order); ALJ Order No. 17 (an unreviewed initial determination terminating each of three respondents on the basis of a consent order and settlement agreement); ALJ Order No. 18 (an unreviewed initial determination terminating one respondent on the basis of a consent order and settlement agreement); and ALJ Order No. 21 (an unreviewed initial determination finding four respondents, including DiscsDirect.Com, in default). In his final ID, the ALJ found that none of the asserted claims are invalid, that the accused products infringe the asserted patent claims,
On November 5, 2003, complainant Philips petitioned for review of the portion of the final ID that found the asserted patents unenforceable due to patent misuse. On the same day, respondents filed a paper entitled “Statement of Respondents Princo Corp., Princo America Corp., Gigastorage Corp. Taiwan, Gigastorage Corp. USA, and Linberg Enterprises, Inc. Regarding the Initial Determination,” in which respondents urged the Commission to adopt the ID in its entirety. Respondents and the Commission investigative attorney (“IA”) filed responses to Philips' petition for review.
On December 8, 2003, the ALJ issued his recommended determination on remedy and bonding.
On December 10, 2003, the Commission determined to review all of the ID's findings of fact and conclusions of law concerning patent misuse. The Commission determined not to review the remainder of the ID, thereby adopting the unreviewed portions. The Commission issued a notice dated December 10, 2003, in which it requested briefing on the issues under review, and invited interested persons to file written submissions on the issues of remedy, the public interest, and bonding. 68 FR 70036 (2003). In accordance with that notice, all parties to the investigation filed timely written submissions, and timely reply submissions, regarding the issues under review.
In the final ID, the ALJ found the asserted patents to be unenforceable for patent misuse
The Commission also adopted the ALJ's conclusion that the asserted patents are unenforceable for patent misuse under a rule of reason standard based on the ALJ's analysis of and findings as to the tying arrangement. 69 FR at 12712; Commission opinion at 50-52. The Commission took no position on the ALJ's conclusion that the royalty rate structure of the CD-R/RW patent pools is an unreasonable restraint of trade. 69 FR at 12712 n.2; Commission opinion at 5, 51. The Commission also affirmed the ALJ's conclusion that the patent misuse has not been shown to have been purged. 69 FR at 12712; Commission opinion at 63. Based on these determinations, the Commission found no violation of section 337 in this investigation. Id.
Philips appealed the Commission's final determination to the United States Court of Appeals for the Federal Circuit (“the Federal Circuit”), and respondents intervened. On September 21, 2005, the Federal Circuit reversed the Commission's final determination of no violation of section 337 in this investigation, and remanded the case for further proceedings consistent with the Court's opinion.
On January 17, 2006, the Commission issued an order seeking comments from the parties as to how to proceed on remand. The Commission specifically
On February 21, 2006, Philips filed comments pursuant to the Commission's January 17, 2006, order. On the same day, respondents jointly filed comments. On February 23, 2006, the IA filed his comments, in which he requested,
On March 21, 2006, the Commission issued an order directing the parties to file responses to the comments of the private parties filed on February 21, 2006. The Commission also denied Philips' motion to file its March 10, 2006, reply memorandum without prejudice to its re-submission as part of Philips' response. On April 18, 2006, all parties filed response comments pursuant to the Commission's March 21, 2006, order.
On April 25, 2006, Philips filed a motion for leave to reply, with attached reply, to the response comments filed by the IA on April 18, 2006. On May 2, 2006, respondents filed an opposition to Philips's motion for leave to reply to the IA's response comments. In its discretion, the Commission has determined to grant Philips' motion for leave to reply and to deny respondents' request to reopen the record for further discovery.
Having reviewed the record in this investigation, including the parties' written submissions, the Commission has determined to reverse the ALJ's findings of patent misuse
The Commission has also determined that the public interest factors enumerated in subsections (d), (f), and (g) of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337(d), (f), and (g)) do not preclude the issuance of the aforementioned general exclusion order and cease and desist orders, and that the recordable and rewritable compact discs in question may be imported into the United States during the period of Presidential review under bond in the amount of US$0.06 per such article. The general exclusion order, cease and desist orders, and Commission opinion supporting its determination were delivered to the United States Trade Representative on the date of issuance.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), the Administrative Procedure Act, 5 U.S.C. 551 et seq., and sections 210.45-210.51 of the Commission's Rules of Practice and Procedure (19 CFR 210.45-210.51).
By order of the Commission.
United States International Trade Commission.
Institution of investigation and scheduling of hearing.
Pursuant to section 5003 of the Tax Relief and Health Care Act of 2006, signed by the President on December 20, 2006 (Public Law 109-432), the Commission instituted investigation No. TR-5003-1, Textiles and Apparel: Effects of Special Rules for Haiti on Trade Markets and Industries, for the purpose of submitting a report to Congress on the effects of the amendments made by the act on the trade markets and industries, involving textile and apparel articles, of Haiti, the countries described in clauses (ii) and (iii) of section 213A(b)(2)(C) of the Caribbean Basin Economic Recovery Act (as added by section 5002 of this Act), and the United States.
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street SW., Washington, DC. All written submissions, including requests to appear at the hearing, statements, and briefs, should be addressed to the Secretary, United States International Trade Commission, 500 E Street SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Information specific to this investigation may be obtained from Project Leaders William Deese (202-205-2626;
Any submissions that contain confidential business information must also conform with the requirements of section 201.6 of the Commission's Rules of Practice and Procedure (19 CFR 201.6). Section 201.6 of the rules requires that the cover of the document and the individual pages be clearly marked as to whether they are the “confidential” or “nonconfidential” version, and that the confidential business information be clearly identified by means of brackets. All written submissions, except for confidential business information, will be made available in the Office of the Secretary to the Commission for inspection by interested parties.
The Commission does not intend to include any confidential business or national security confidential information in the report it sends to the Congress. Accordingly, any confidential business information received by the Commission in this investigation and used in preparing the report will not be published in a manner that would reveal the operations of the firm supplying the information.
By order of the Commission.
60-day notice of information collection under review: Evaluation of Impacts of Federal Casework Programs.
The Department of Justice, Office of Justice Programs, National Institute of Justice (NIJ) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until April 10, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Kathy Browning, Office of Justice Programs, National Institute of Justice, (202) 616-4786.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
Prosecutor Survey;
Law Enforcement Survey;
*Lab Personnel Survey.
(3) Not Applicable.
(4) Affected public who will be asked or required to respond are: Prosecutors, Law Enforcement Officials, and Forensic Laboratory personnel from agencies within the jurisdiction represented by the grantees.
The National Institute of Justice uses this information to assess the impacts and cost-effectiveness of the Forensic Casework DNA Backlog Programs over time and to diagnose performance problems in current casework programs. This evaluation will help decision makers be better informed to not only diagnose program performance problems, but also to better understand
(5) An estimate of the total number of respondents and the amount of time needed for an average respondent to respond is broken down as follows:
Law Enforcement—200 respondents, average burden time 120 minutes—400 hours total.
Prosecutors—200 respondents, average burden time 90 minutes—300 hours total.
Lab personnel—135 respondents average burden 120 minutes—270 hours total.
(6) An estimate of the total public burden (in hours) associated with the collection:
The estimated total public burden associated with this collection is 970 hours.
If additional information is required, contact Lynn, Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, 601 D Street, NW., Suite 1600,Washington, DC 20530.
30-Day notice of information collection under review: International Terrorism Victim Compensation Program Application.
The Department of Justice (DOJ), Office of Justice Programs (OJP) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until March 12, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged.
Your comments should address one or more of the following points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and,
(4) Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, 601 D Street NW, Patrick Henry Building, Suite 1600, NW., Washington, DC 20530.
Federal Bureau of Prisons, Department of Justice.
Notice of Intent to Prepare a Draft Environmental Impact Statement (DEIS).
Notice of Intent to Prepare a Draft Environmental Impact Statement (DEIS) for development of a Federal correctional complex by the U.S. Department of Justice, Federal Bureau of Prisons. The area under consideration for correctional facility development includes sites in the Aliceville area in Alabama.
The Federal Bureau of Prisons (BOP) is responsible for carrying out judgments of the federal courts whenever a period of confinement is ordered. The mission of the BOP is to
As of February 5, 2007 approximately 194,000 inmates are housed within the 114 federal correctional facilities that have levels of security ranging from minimum to maximum. At the present time, the federal inmate population exceeds the combined rated capacities of the 114 federal correctional facilities. An additional 18,746 federal inmates are housed within privately-managed secure facilities and approximately 11,109 inmates are housed in other facilities for a total federal inmate population of approximately 194,000.
The continuing inmate population is due in part to Federal court sentencing guidelines which are resulting in longer terms of confinement for serious crimes. The increase in the number of immigration offenders and the effort to combat organized crime and drug trafficking are also contributing to the increase. Measures being undertaken to manage the growth of the federal inmate population include construction of new institutions, acquisition and adaption of facilities originally intended for other purposes, expansion and improvement of existing correctional facilities, and expanded use of contract beds. Adding capacity through these various means allows the BOP to work towards the long-term goal of managing our inmate population growth.
In the face of the continuing increase in the federal prison population, one way the BOP has extended its capacity is through construction of new facilities. As part of this effort, the BOP has a facilities planning program featuring the identification and evaluation of sites for new facilities. The BOP routinely identifies prospective sites that may be appropriate for development of new federal correctional facilities. Locations of new federal correctional facilities are determined by the need for such facilities in various parts of the country and the resources available to meet that need.
The BOP routinely screens and evaluates private and public properties located throughout the nation for possible use and development. Over the past decade, the BOP has examined prospective sites for new correctional facilities development in Kentucky, New Hampshire, Virginia, Pennsylvania, West Virginia, North Carolina, South Carolina, Indiana among other locations around the country and has undertaken environmental impact studies in compliance with the National Environmental Policy Act (NEPA) of 1969, as amended.
The BOP is facing increased bedspace shortages throughout the federal prison system. Over the past decade, a significant influx of inmates has entered the federal prison system with a large portion of this influx originating from the Southeast region.
In response, the BOP has committed significant resources to identifying and developing sites for new federal correctional facilities throughout this region, including construction of facilities in Coleman, Florida; Yazoo City, Mississippi; Marlboro County, South Carolina; Williamsburg County, South Carolina; and Pollock, Louisiana. Even with the development of these new and expanded facilities, projections show the federal inmate population continuing to increase, placing additional demands for bedspace within the Southeast Region.
In response, the BOP has undertaken preliminary investigations in an effort to identify prospective sites capable of accommodating federal correctional facilities and communities willing to host such facilities. Through this process, officials representing the Aliceville, Alabama, area identified potential locations for development of federal correctional institutions and offered several sites for BOP consideration. These potential sites were subjected to initial studies by the BOP and those considered suitable for correctional facility development will be evaluated further by the BOP in a DEIS that will analyze the potential impacts of facility construction and operation. The BOP is proposing to build and operate in the Southeast region a federal correctional complex which could ultimately consist of four institutions of varying security levels. However, immediate plans look toward construction of one of these institutions, a medium-security federal correctional institution with an adjoining satellite work camp.
In the process of evaluating the potential environmental impacts associated with federal correctional facility development and operation, many factors and features will be analyzed including, but not limited to: topography, geology, soils, hydrology, biological resources, cultural resources, hazardous materials, aesthetics, fiscal considerations, population/ employment/housing characteristics, community services and facilities, land uses, utility services, transportation systems, meteorological conditions, air quality, and noise.
In developing the DEIS, the No Action alternative, other actions considered and eliminated, and alternatives sites for the proposed medium-security federal correctional institution will be examined.
Three sites are currently identified as alternatives for federal correctional complex development. Site 1 is comprised of approximately 735 acres and is located approximately three miles northwest of Aliceville along Route 14. Site 2 is comprised of approximately 827 acres and is located approximately six miles south-southeast of Aliceville along Route 2. Site 3 is comprised of approximately 838 acres and is located approximately three miles south of Aliceville along Route 13. Additional sites may also be examined as sites become available through the scoping process and preparation of the Environmental Impact Statement.
During the preparation of the DEIS, there will be opportunities for public involvement in order to determine the issues to be examined. A Public Scoping Meeting will be held at 7 p.m., Tuesday, March 6, 2007, at City Hall, Memorial Parkway East, Aliceville, Alabama. The meeting location, date, and time will be well-publicized and have been arranged to allow for the public as well as interested agencies and organizations to attend and formally express their views on the scope and significant issues to be studied as part of the DEIS process. The Scoping Meeting is being held to provide for timely public comments and understanding of federal plans and programs with possible environmental consequences as required by the National Environmental Policy Act of 1969, as amended, and the National Historic Preservation Act of 1966, as amended.
Public notice will be given concerning the availability of the DEIS for public review and comment.
Questions concerning the proposed action and the DEIS may be directed to: Pamela J. Chandler, Chief, or Issac J. Gaston, Site Selection Specialist, Site Selection and Environmental Review Branch, U.S. Department of Justice—Federal Bureau of Prisons, 320 First
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974, (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on November 28, 2005, applicable to workers of Fibrex, LLC, formerly known as Wellington Cordage, LLC, Madison, Georgia. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of rope (i.e. cordage).
The subject firm originally named Fibrex, LLC, formerly known as Wellington Cordage, Madison, Georgia, became known as The Lehigh Group in January 2006 due to a change in ownership. The State agency reports that workers wages at the subject firm are being reported under the Unemployment Insurance (UI) tax account for The Lehigh Group, Madison, Georgia.
Accordingly, the Department is amending the certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Fibrex, LLC, formerly known as Wellington Cordage, LLC, Madison, Georgia, who were adversely affected by increased company imports.
The amended notice applicable to TA-W-58,246 is hereby issued as follows:
All workers of Fibrex, LLC, formerly known as Wellington Cordage, LLC, currently known as The Lehigh Group, Madison, Georgia, who became totally or partially separated from employment on or after November 27, 2005, through November 28, 2007, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
On December 13, 2006, the United States Court of International Trade (USCIT) granted the Department of Labor's request for voluntary remand in
In the September 11, 2006 Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) petition, a company official indicated that Hoover Precision Products, Inc., Washington, Indiana (subject facility) was a distribution and warehouse center of carbon steel balls, that the facility was scheduled to close on September 15, 2006, and that three workers would be separated as a result of the closure. In support of the petition, the company official cited NAFTA-4916 (certified on June 18, 2001; shift of production to Mexico).
During the initial investigation, it was revealed that the subject facility was engaged in warehousing and distributing articles produced at an affiliated facility in Mexico, and that the warehousing and distributing functions were shifting to an affiliated facility in Georgia.
Based on information obtained during the initial investigation, the Department determined that the subject workers were ineligible to apply for TAA because they did not produce an article within the meaning of Section 222(a)(2) of the Trade Act of 1974.
On September 15, 2006, the Department issued a negative determination regarding workers' eligibility to apply for workers adjustment assistance for the subject workers. The Department's Notice of determination was published in the
By application dated September 29, 2006, three workers requested administrative reconsideration of the Department's negative determination. In the request for reconsideration, the workers stated that “Washington, IN is a distribution facility. We distributed components to companies who manufactured them into their finished products. Hoover Precision in Indiana has lost a substantial amount of business from at least 3 companies who are TAA certified. This qualifies our company in Washington, IN as secondary workers affected by foreign trade.”
For purposes of the Trade Act, a secondarily-affected company is a company that either supplies components parts for articles produced by a firm with a currently TAA-certified worker group or is an assembler or finisher for a firm with a currently TAA-certified worker group.
In order to be certified as eligible to apply for TAA as workers of a secondarily-affect company, the following eligibility requirements must be met:
(1) The workers' firm or appropriate subdivision produced an article during the one year period prior to the petition date; and
(2) A required minimum of the workforce has been laid off in the 12 months preceding the date of the petition or is threatened with layoffs (3 workers in groups of fewer than 50, or 5% of the workforce in groups of 50 or more); and
(3) Loss of business (during the relevant period) as a supplier of component parts, a final assembler, or a finisher for a firm that is currently TAA-certified contributed importantly to an actual decline in sales or production, and to a layoff or threat of a layoff.
By letter dated October 3, 2006, the Department dismissed the workers' request for reconsideration because the subject facility did not produce an article, the workers were service workers who processed imported articles, and the workers were not eligible for TAA as workers of a secondarily-affected company. The Department's Notice of Dismissal of Application for Reconsideration for the subject facility was published in the
By letter dated October 9, 2006, the workers appealed to the USCIT for judicial review. The Plaintiffs alleged that they were production workers and
On December 13, 2006, the USCIT granted the Department's motion for voluntary remand to conduct further investigation and to make a redetermination regarding the Plaintiffs' eligibility to apply for worker adjustment assistance (TAA and ATAA).
To be certified as eligible to apply for TAA, the following criteria must be met:
(1) A significant number or proportion of the workers in such workers' firm (or appropriate subdivision of the firm) have become, or are threatened to become, totally or partially separated;
(2) Sales or production, or both, of such firm or subdivision have decreased absolutely; and
(3) Increases (absolute or relative) of imports of articles produced by such workers' firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production, or
(4) There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and the country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States, is a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act or there has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
During the remand investigation, the Department reviewed previously-submitted information, contacted the Plaintiffs, and requested additional information and clarification from Hoover Precision Products, Inc. (subject firm).
During the remand investigation, the subject firm provided new information which revealed that a majority of the subject workers' activities was related to production and that the remaining activities consisted of warehousing and shipping functions. Based on this new information, the Department determines that, for purposes of the Trade Act, workers of the subject facility were engaged in production.
Information obtained during the remand investigation confirmed previously-submitted information that the subject facility ceased to operate in September 2006 and that the subject firm faced increased foreign competition during the relevant time period.
During the remand investigation, the Department received additional information which revealed that increased imports of articles like or directly competitive with carbon steel balls produced at the subject facility contributed importantly to the subject workers' separations.
Based on new information and confirmations obtained during the remand investigation, the Department determines that TAA criteria (1), (2) and (3) have been met.
In addition, in accordance with Section 246 the Trade Act of 1974, as amended, the Department herein presents the results of its investigation regarding certification of eligibility to apply for ATAA for older workers.
The group eligibility criteria for ATAA that the Department must consider under Section 246 of the Trade Act are:
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse).
The Department has determined in the case at hand that ATAA criterion (1) has not been met. For purposes of the ATAA program, a significant number means at least three or more workers in a firm with a workforce of fewer than 50 workers.
During the remand investigation, the Department confirmed with the subject firm and the Plaintiffs that one worker at the subject facility is age 50 or over.
After careful review of the facts generated through the remand investigation, I determine that increased imports of articles like or directly competitive with carbon steel balls produced at the subject facility contributed to the total or partial separation of a significant number or proportion of workers at the subject facility.
In accordance with the provisions of the Act, I make the following certification:
“All workers of Hoover Precision Products, Inc., Washington, Indiana, who became totally or partially separated from employment on or after September 11, 2005, through two years from the issuance of this revised determination, are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade Act of 1974.”
I further determine that all workers of Hoover Precision Products, Inc., Washington, Indiana, are denied eligibility to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on September 8, 2006, applicable to workers of International Textile Group, Incorporated, Corporate Headquarters, Greensboro, North Carolina. The notice was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. New information shows that worker separations have occurred involving employees of the Corporate Headquarters, Greensboro, North Carolina facility of International Textile Group, Incorporated.
Employees of the Corporate Headquarters working out of Stratford, Connecticut, Plano, Texas, Chino, California, Denver, Colorado, and Winnetka, Illinois provided sales function services for the production of broadwoven synthetic and wool fabric produced by the subject firm.
Based on these findings, the Department is amending this certification to include employees of the Corporate Headquarters, Greensboro,
The intent of the Department's certification is to include all workers of International Textile Group, Incorporated, Corporate Headquarters, Greensboro, North Carolina who were adversely affected by a shift in production to Mexico.
The amended notice applicable to TA-W-59,956 is hereby issued as follows:
Pursuant to 29 CFR 90.18(C) an application for administrative reconsideration was filed with the Director of the Division of Trade Adjustment Assistance for workers at KHS USA, Inc., Waukesha Division, a wholly owned subsidiary of KHS AG, Waukesha, Wisconsin. The application did not contain new information supporting a conclusion that the determination was erroneous, and also did not provide a justification for reconsideration of the determination that was based on either mistaken facts or a misinterpretation of facts or of the law. Therefore, dismissal of the application was issued.
TA-W-60,365; KHS USA, Inc., Waukesha Division,A Wholly Owned Subsidiary of KHS AG, Waukesha, Wisconsin (February 1, 2007).
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on November 30, 2006, applicable to workers of Parkdale America, LLC, Eden, North Carolina. The notice was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of open end spun yarn.
New information shows that Parkdale Mills, Inc. is the parent firm of Parkdale America, LLC. Workers separated from employment at the subject firm had their wages reported under two separate unemployment insurance (UI) tax accounts: Parkdale America, LLC and Parkdale Mills, Inc.
Accordingly, the Department is amending the certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of the Eden, North Carolina location of the subject firm who were adversely affected by increased customer imports.
The amended notice applicable to TA-W-60,280 is hereby issued as follows:
“All workers of Parkdale America, LLC, Parkdale Mills, Inc., Eden, North Carolina, who became totally or partially separated from employment on or after October 1, 2005, through November 30, 2008, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974 and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than February 20, 2007.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than February 20, 2007.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed extension of the information collection related to the application for a permit to fire more than 20 boreholes, for the use of nonpermissible blasting units, and for the use of nonpermissible explosives and nonpermissible shot-firing units, and posting of warning notices with regard to mis-fired explosives.
Submit comments on or before April 10, 2007.
Send comments to U.S. Department of Labor, Mine Safety and Health Administration, Debbie Ferraro, Management Services Division, 1100 Wilson Boulevard, Room 2171, Arlington, VA 22209-3939. Commenters are encouraged to send their comments on a computer disk, or via E-mail to
Contact the employee listed in the “
Under Section 313 of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 873, a mine operator is required to use permissible explosives in underground coal mines. The Mine Act also provides that under safeguards prescribed by the Secretary of Labor, a mine operator may permit the firing of more than 20 shots and the use of nonpermissible explosives in sinking shafts and slopes from the surface in rock. Title 30, CFR 75.1321 outlines the procedures by which a permit may be issued for the firing of more than 20 boreholes and/or the use of nonpermissible shot-firing units in underground coal mines. In those instances in which there is a misfire of explosives, 30 CFR 75.1327 requires that a qualified person post each accessible entrance to the affected area with a warning to prohibit entry. Title 30 CFR 77.1909-1 outlines the procedures by which a coal mine operator may apply for a permit to use nonpermissible explosives and/or shot-firing units in the blasting of rock while sinking shafts or slopes for underground coal mines.
MSHA is particularly interested in comments that:
• 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 submissions of responses.
A copy of the proposed information collection request can be obtained by contacting the employee listed in the
Title 30, CFR 75.1321, 75.1327 and 77.1901-1 provide MSHA District Managers with the authority to address unusual but recurring blasting practices needed for breaking rock types more resilient than coal and for misfires in blasting coal. MSHA uses the information requested to issue permits to mine operators or shaft and slope contractors for the use of nonpermissible explosives and/or shot-firing units under 30 CFR part 77, Subpart T—Slope and Shaft Sinking. Similar permits are issued by MSHA to underground coal mine operators for shooting more than 20 bore holes and/or for the use of nonpermissible shot firing units when requested under 30 CFR part 75, Subpart N—Explosives and Blasting. The approved permits allow the use of specific equipment and explosives in limited applications and under exceptional circumstances where standard coal blasting techniques or equipment is inadequate to the task. These permits inform mine management and the miners of the steps to be employed to protect the safety of any person exposed to such blasting while using nonpermissible items. Also, the posting of danger/warning signs at entrances to locations where a misfired blast hole or round remains indisposed is a safety precaution predating the Coal Mine Safety and Health Act.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Public Law 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Mr. Walter Kit, National Aeronautics and Space Administration, Washington, DC 20546-0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Mr. Walter Kit, NASA PRA Officer, NASA Headquarters, 300 E Street SW., JE000, Washington, DC 20546, (202) 358-1350,
In 2005, NASA TV switched from transmitting an analog TV signal to a Digital signal that requires viewers to buy a digital receiver. NASA needs to determine how this switch affects viewers, how viewers use NASA TV, and what changes they request. Responses will be used to recommend improvements to NASA TV.
Respondents will complete an online survey. All study data will be collected online using Web-based database technologies.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Board announces the following meeting:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collections of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget (“OMB”) for extension and approval.
Section 31(a)(1) of the Investment Company Act of 1940 (the “Act”) requires registered investment companies (“funds”) and certain principal underwriters, broker-dealers, investment advisers and depositors of funds to maintain and preserve records as prescribed by Commission rules.
Rule 31a-2 requires the following:
1. Every fund must preserve permanently, and in an easily accessible place for the first two years, all books and records required under rule 31a-1(b)(1)-(4).
2. Every fund must preserve for at least six years, and in an easily accessible place for the first two years:
a. all books and records required under rule 31a-1(b)(5)-(12);
b. all vouchers, memoranda, correspondence, checkbooks, bank statements, canceled checks, cash reconciliations, canceled stock certificates and all schedules that support each computation of net asset value of fund shares;
c. any advertisement, pamphlet, circular, form letter or other sales literature addressed or intended for distribution to prospective investors;
d. any record of the initial determination that a director is not an interested person of the fund, and each subsequent determination that the director is not an interested person of the fund, including any questionnaire and any other document used to determine that a director is not an interested person of the company;
e. any materials used by the disinterested directors of a fund to determine that a person who is acting as legal counsel to those directors is an independent legal counsel; and
f. any documents or other written information considered by the directors of the fund pursuant to section 15(c) of the Act in approving the terms or renewal of a contract or agreement between the company and an investment advisor.
3. Every underwriter, broker or dealer that is a majority-owned subsidiary of a fund must preserve records required to be preserved by brokers and dealers under rules adopted under section 17 of the Securities Exchange Act of 1934
4. Every depositor of any fund, and every principal underwriter of any fund other than a closed-end fund, must preserve for at least six years records required to be preserved by brokers and dealers under rules adopted under section 17 to the extent the records are necessary or appropriate to record the entity's transactions with the fund.
5. Every investment adviser that is a majority-owned subsidiary of a fund must preserve the records required to be maintained by investment advisers under rules adopted under section 204 of the Investment Advisers Act of 1940
6. Every investment adviser that is not a majority-owned subsidiary of a fund must preserve for at least six years records required to be maintained by registered investment advisers under rules adopted under section 204 to the extent the records are necessary or appropriate to reflect the adviser's transactions with the fund.
The records required to be maintained and preserved under this part may be maintained and preserved for the required time by, or on behalf of, a fund on (i) micrographic media, including microfilm, microfiche, or any similar medium, or (ii) electronic storage media, including any digital storage medium or system that meets the terms of this section. The fund, or person that maintains and preserves records on its behalf, must arrange and index the records in a way that permits easy location, access, and retrieval of any particular record.
The Commission periodically inspects the operations of all funds to ensure their compliance with the provisions of the Act and the rules under the Act. The Commission staff spends a significant portion of their time in these inspections reviewing the information contained in the books and records required to be kept by rule 31a-1 and to be preserved by rule 31a-2.
There are approximately 4,920 funds as of December 31, 2006, all of which are required to comply with rule 31a-2. Based on recent conversations with representatives of the fund industry and past estimates, our staff estimates that each fund currently spends 220 hours per year complying with the records preservation required by rule 31a-2. The hour burden is incurred by a variety of fund staff, and the type of staff position used for compliance with the rule varies widely from fund to fund. Based on these estimates, our staff estimates that the total annual burden of a fund to comply with rule 31a-2, is 220 hours, with a total annual burden for all funds of 1,082,400 hours.
The hour burden estimates for retaining records under rule 31a-2 are based on our experience with registrants and our experience with similar requirements under the Act and the rules under the Act. The number of burden hours may vary depending on, among other things, the complexity of the fund, the issues faced by the fund, and the number of series and classes of the fund. The estimated average burden hours are made solely for purposes of the Paperwork Reduction Act and are not derived from quantitative, comprehensive, or even representative survey or study of the burdens associated with our rules and forms.
The Commission staff estimates the average cost of preserving books and records required by rule 31a-2, to be approximately $.000035 per $1.00 of net assets per year.
These estimates of average costs are made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of
Written comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burdens of the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burdens of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson 6432 General Green Way, Alexandria, Virginia, 22312; or send an e-mail to:
Closed Meeting.
100 F Street, NE., Washington, DC.
Thursday, February 8, 2007 at 2 p.m.
Time Change.
The Closed Meeting scheduled for Thursday, February 8, 2007 at 2 p.m. has been changed to Thursday, February 8, 2007 at 10 a.m.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to clarify the current Payment for Order Flow Plan with respect to funds collected from Supplemental Registered Options Traders (“SROTs”).
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. Amex has substantially prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange adopted its current Payment for Order Flow Plan in February of 2006.
As noted in the Exchange's previous Payment for Order Flow filings, fees are collected from any SROT, specialist or ROT who participates in a trade with a payment accepting firm with whom a specialist has negotiated a payment for order flow arrangement, or with whom an SROT has negotiated a payment with an affiliated SROT.
The Exchange proposes to clarify the current Payment for Order Flow Plan to limit the spending of funds collected from SROTs, which are allocated to a specialist, when the SROT participates in a trade where the specialist has negotiated a payment for order flow arrangement. In these instances, the Exchange proposes to require that the specialist be limited to spending any SROT collected funds only in those options classes in which the SROT is able to trade.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing proposed rule change has been designated as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange seeks a six-month extension of its pilot program increasing the standard position and exercise limits for options on the QQQQ and equity option classes traded on the Exchange (“Pilot Program”). The text of the proposed rule change is available at Amex, the Commission's Public Reference Room, and
In its filing with the Commission, Amex 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 is requesting to extend its current Pilot Program increasing the standard position and exercise limits for options on the QQQQ and equity option classes traded on the Exchange for a time period of six months from March 1, 2007, through and including September 1, 2007.
In March 2005, the Exchange established the Pilot Program for a six-month period.
The standard position limits were last increased on December 31, 1998.
The Exchange has not encountered any problems or difficulties relating to the Pilot Program since its inception. The instant proposed rule change makes no substantive change to the Pilot Program other than to extend it for six months through and including September 1, 2007.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change would impose no burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received by the Exchange on this proposal.
Because the foregoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days from the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate 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 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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the rules of the Boston Options Exchange (“BOX”) to adopt a Universal Price Improvement Period (“UPIP”) to offer the opportunity for price improvement for eligible Public Customer
In its filing with the Commission, the BSE 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 BSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Currently, the BOX offers Options Participants, who wish to price improve their Customer Orders, access to a price improvement auction referred to as the “PIP” (Price Improvement Period). In order for a Customer Order to be entered into a PIP auction, Options Participants must be willing to improve the execution price themselves or seek price improvement through the PIP via a Directed Order. In either instance, initial access to the PIP is dependent upon the ability of at least one party to guarantee price improvement for the full size of the Customer Order. UPIP, however, is a
In the discussion to follow, BSE provides an overview of the UPIP auction and discusses some of the more salient features and benefits of the UPIP. In addition, BSE addresses the underlying purpose of the UPIP by, in part, comparing the UPIP to the industry practice of “paying for order flow,” and by discussing the overall effectiveness of UPIP in the context of the Commission's Penny Pilot.
The rule proposal allows UPIP Orders to be modified and cancelled at any time prior to the conclusion of the UPIP auction. The cancellation of a UPIP Order will result in the subsequent
In order to receive the benefits of the NBBO Prime designation, the same beneficial account,
An Options Participant seeking priority through the NBBO Prime designation must indicate to the Trading Host the order number of the NBBO Prime Participant Quote when the Options Participant submits the Improvement Order for the same beneficial account. In addition, under the proposed rule the Options Participant is permitted the flexibility to indicate whether the NBBO Prime Participant Quote size should be decremented to reflect any execution of the NBBO Prime Order. In the absence of such an indication, the Trading Host will not decrement the NBBO Prime Participant Quote. Market Makers will not be required to identify their relevant order number but will need to indicate to the Trading Host that their applicable NBBO Prime Participation Quote size should be decremented; otherwise their NBBO Prime Participation Quote size will remain unchanged on the BOX Book.
A modification or cancellation of the Initial BOX Book Quote during the UPIP auction that decreases the Initial Aggregate Quote size below the size of the UPIP Order, at the commencement of the UPIP auction, will cause the UPIP auction to immediately terminate. Such modification or cancellation will only be processed after the UPIP Order has been executed. An Options Participant who is part of the Initial BOX Book Quote, and whose cancellation or modification of its order/quote causes the UPIP auction to terminate, will have its order/quote placed at the end of the quote and order queue at the applicable price level on the BOX Book. At which point, the UPIP Order will be matched according to the UPIP trade allocation rules. Any modification or cancellation of the Initial BOX Book Quote that does not cause the Initial Aggregate Quote Size to decrease below the size of the UPIP Order, however, will be processed immediately by the Trading Host without penalty and the UPIP auction will continue.
The proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The CBOE proposes to extend the duration of CBOE Rule 6.45A(b) (the “Rule”), relating to the allocation of orders represented in open outcry in equity option classes designated by the Exchange to be traded on the CBOE Hybrid Trading System (“Hybrid”) through April 30, 2007. No other changes are being made to the Rule. The text of the proposed rule change is available at CBOE, the Commission's Public Reference Room, and (
In its filing with the Commission, the CBOE 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.
In March 2005, the Commission approved revisions to CBOE Rule 6.45A related to the introduction of Remote Market-Makers.
Extension of the duration of the rule will allow the Exchange to continue to operate under the existing allocation parameters for orders represented in open outcry in Hybrid on an uninterrupted basis. Accordingly, CBOE believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Because the foregoing proposed rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for thirty days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Commission Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate 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 the 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 e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NYSE Arca proposes to amend its Schedule of Fees and Charges for Services (“Schedule”) in order to revise certain Transaction Fees and to eliminate Marketing Fees for issues that trade as part of the Penny Pilot Program (“Pilot” or “Penny Pilot Program”).
In its filing with the Commission, NYSE Arca included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposal. The text of these statements may be examined at the places specified in Item IV below. NYSE Arca has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to revise the existing NYSE Arca Schedule in conjunction with the introduction of the Penny Pilot Program. The Exchange plans to include the following issues as part of the Penny Pilot Program. Agilent Technologies: (A), Advanced Micro Devices (AMD), Caterpillar (CAT), Flextronics International (FLEX), General Electric (GE), Intel (INTC), iShares Russell 2000 Index fund (IWM), Microsoft (MSFT), Nasdaq-100 Index Tracking Stock (QQQQ), Semiconductor Holders Trust (SMH), Sun Microsystems (SUNW), Texas Instruments (TXN), and Whole Foods Markets (WFMI). NYSE Arca is proposing to amend its Schedule in order to make the following changes to certain fees and charges that are assessed to OTP Holders and OTP Firms
NYSE Arca is proposing to implement a Post/Take pricing model for electronically executed transactions in issues that are part of the Penny Pilot Program. Under the proposed rate schedule, all electronic orders that add or “post” liquidity to the Consolidated Book (resting orders and resting quotes) will receive a transaction credit upon execution. Registered Market Makers
The Transaction Fee for all trade participants that “take” liquidity from the Consolidated Book (incoming electronic quotes and orders that are executed upon receipt) will be $0.50 per contract. This fee will be applied to all trade participants, including Market Makers, Broker-Dealers and OTP Firms executing orders on behalf of Public Customers.
Electronically entered Contingency Orders, such as All or None (“AON”) and Immediate or Cancel (“IOC”) are deemed to be taking liquidity and therefore will be assessed the $0.50 per contract fee.
Orders that take place as part of an Opening Auction are deemed to neither take nor post liquidity. For this reason, in issues that trade as part of the Penny Pilot Program, executions that take place as part of an Opening Auction will neither be assessed nor credited the Transaction Fee.
Linkage Orders executed at NYSE Arca are subject to the same billing treatment as other Broker Dealer orders.
For electronic executions in issues included in the Penny Pilot Program, where the Exchange pays a Royalty Fee to a licensed underwriter, the Royalty Fee will be passed through to the trading participant on the “take” side of the transaction. Royalty Fees will not be assessed on executions occurring during the Opening Auction in Pilot issues. Open Outcry executions in Pilot issues and all executions in non-Pilot issues will be subject to the current billing treatment covering Royalty Fees.
The above rates apply only to electronically executed transactions in Penny Pilot issues mentioned above, effective upon the date that they rollout as part of the Pilot. Initial plans for the Penny Pilot Program do not include any issues that have Royalty Fees associated with them. In the event that the Exchange was to propose the inclusion of a Royalty Fee issue in the Penny Pilot Program, it would do so through a rule filing with the Commission pursuant to Rule 19b-4.
The Exchange presently assesses Market Makers
As part of the Penny Pilot Program, NYSE Arca will be quoting and trading a limited number of issues in one cent increments. For transactions in issues which are included as part of the Penny Pilot Program, the Exchange will no longer collect a Marketing Fee. All other aspects of the Marketing Fee will remain the same.
The Penny Pilot Program commenced on January 26, 2007.
NYSE Arca believes that the proposed rule change is consistent with Section 6(b) of the Act,
NYSE Arca does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NYSE Arca is proposing to expand the business activities of Archipelago Securities, L.L.C. (“Archipelago Securities”), a registered broker-dealer, a member of several self-regulatory organizations including the NASD, and a facility of the Exchange. With this filing, the Exchange proposes that, in addition to providing an optional outbound order routing service for the Exchange, Archipelago Securities shall act as a marketing agent on behalf of NYSE Arca Tech 100 Index (the “Index”) and NYSE Arca Tech 100 ETF (the “ETF”) and provide reasonable services attendant thereto.
In its filing with the Commission, NYSE Arca 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. NYSE Arca has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
In October 2001, the Commission approved Wave Securities, L.L.C. (“Wave”) to operate as a facility of the Exchange, as that term is defined in Section 3(a)(2) of the Act.
With this filing, the Exchange proposes that Archipelago Securities act as a marketing agent on behalf of the Index and the ETF and provide reasonable services attendant thereto. This proposed business activity has no connection to Archipelago Securities' facility functions described above. As marketing agent for the Index and the ETF, Archipelago Securities will develop a marketing plan designed to advertise, promote, and increase public awareness of the Index and the ETF within the financial services industry and investing public (“Marketing Plan”), including: branding, promotional activities, development and design of marketing materials, collateral and media campaigns (
The proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Social Security Administration (SSA).
Notice of amended computer matching program, which is expected to begin March 27, 2007.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a computer matching program that SSA plans to conduct with the IRS.
SSA will file a report of the subject matching program with the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Government Reform of the House of Representatives, and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). The matching program will be effective as indicated below.
Interested parties may comment on this notice by either telefax to (410) 965-8582 or writing to the Associate Commissioner, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401. All comments received will be available for public inspection at this address.
The Associate Commissioner for Income Security Programs as shown above.
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503) amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving Federal agencies could be performed and by adding certain protections for individuals applying for, and receiving, Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of
It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the Data Integrity Board's approval of the match agreements;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
We have taken action to ensure that all of SSA's computer matching programs comply with the requirements of the Privacy Act, as amended.
The purpose of this matching program is to establish the correct amount of Medicare Part B premium subsidy adjustment under section 1839(i) of the Medicare Prescription Drug,Improvement and Modernization Act of 2003 (MMA). Pursuant to section 1839(i) of the MMA(42 U.S.C. 1395r), SSA shall determine whether a Medicare Part B enrollee would pay a larger percentage of the Part B premium than an individual with income below the applicable threshold. The agreement has been amended to include individuals who have not dis-enrolled from Medicare Part B, and those who have filed applications specifically for Medicare Part B.
Section 6103(l)(20) of the Internal Revenue Code (26 U.S.C. 6103(1)(20)) authorizes the IRS to disclose return information with respect to Modified Adjusted Gross Income(MAGI) to SSA for the purpose of adjusting the usual Part B premium subsidy for Medicare beneficiaries with MAGI above the applicable threshold. Section 1839(i) of the MMA requires the Commissioner of SSA to determine the amount of an individual's Part B premium if the MAGI is above the applicable threshold for an individual or a married couple as established in section 1839(i)(2)(A) of the Act.
SSA will provide the IRS with identifying information with respect to individuals who are eligible for Medicare Part B, but have not yet enrolled, and individuals who are enrolled for Medicare Part B from the Master Beneficiary Record system of records, SSA/ORSIS 60-0090, originally published at 60 FR 2144 (January 6, 1995) and as revised at 71 FR 1826 (January 11, 2006). MAGI data provided by the IRS will be maintained in the Medicare Database system of records, SSA/ORSIS 60-0321, published at 69 FR 77816 (December 28, 2004), revised at 71FR 42159 (July 25, 2006). IRS will extract return information with respect to MAGI from the Return Transaction File, which is a part of the Individual Returns, Adjustments and Miscellaneous Documents File, Treasury/IRS 22.034, as published at 66 FR 63794 (December 10, 2001).
The matching program will become effective no sooner than 40 days after notice of the matching program is sent to Congress and OMB, or 30 days after publication of this notice in the
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995.
• Title of Information Collection: Emergency Loan Application and Evacuation Documentation
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Submit comments to the Office of Management and Budget (OMB) for up to 30 days from February 9, 2007.
Direct comments and questions to Katherine Astrich, the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB), who may be reached at 202-395-4718. You may submit comments by any of the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
The purpose of the DS-3072 is to process these emergency loans for destitute citizens and to document the safe and efficient evacuation of private U.S. citizens, dependents and third country nationals from abroad. The information will be used to process the emergency loan, facilitate reception and resettlement assistance in the United States and for debt collection. Respondents are private U.S. citizens and their dependents abroad who are destitute and in need of repatriation to the United States; private U.S. citizens and their dependents abroad who are in need of emergency medical and dietary assistance who are unable to obtain such services otherwise; and private U.S. citizens abroad and their dependents and third country nationals who are in need of evacuation when their lives are endangered by war, civil unrest, or natural disaster.
The information is collected in person, by fax, or via mail. The Bureau of Consular Affairs is currently exploring options to make this information collection available electronically.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
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The Department will accept comments from the public up to 60 days from February 9, 2007.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection and supporting documents, to Lauren Prosnik of the Office of Visa Services, U.S. Department of State, 2401 E. Street, N.W., L-603, Washington, DC 20522, who may be reached at (202) 663-2951 or
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
Form DS-117 is used by consular officers to determine the eligibility of an alien applicant for special immigrant status as a returning resident.
Information will be collected by mail.
Federal Highway Administration (FHWA), DOT.
Notice; request for comments.
The FHWA is currently conducting a reassessment of the Highway Performance Monitoring System (HPMS), which is a national highway transportation system database maintained and used primarily by the FHWA as a resource for information about the extent, condition, performance, use, and operating characteristics of the Nation's highways. This notice requests public comment on the draft
Comments on the draft report must be received on or before June 30, 2007. The docket however, will remain open until the reassessment is complete. We anticipate that the reassessment will be completed on September 30, 2007.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at
Mr. David Winter, Highway System Performance Division, Office of Highway Information, (202) 366-0175,
An electronic copy of this notice may be downloaded from the Office of the Federal Register's home page at
On April 10, 2006, the FHWA published a notice in the
The HPMS first was developed in 1978 as a national highway transportation system database. In its current configuration, the HPMS includes limited data on all public roads, more detailed data for a sample of the arterial and collector functional systems, and area-wide summary information for urbanized, small urban, and rural areas. Over its nearly 30 year life, the HPMS has evolved, adjusting to legislative and other changes in the focus of the highway program.
The FHWA continues to take an open approach to completing the reassessment effort. Major emphasis is directed towards determining the data needs of FHWA's partners, stakeholders, and customers, the various uses of the existing HPMS, and the ability of data providers to support these data needs.
There are three major categories of proposed changes discussed in the HPMS Reassessment Recommendations Report: (1) Structure of HPMS; (2) Data Items; and, (3) Data Quality Process Improvement. In each category, the report explores the potential impact of the recommended changes on the State data providers, the FHWA, and the data users. Each recommendations is accompanied by an explanation as to why certain decisions were made, along with feedback from HPMS data users and providers gathered through the outreach portion of the reassessment. The recommendation topic areas by category are:
• Structure of HPMS: Data Model, Sampling, Boundaries and Functional Classification, and Interchanges and Ramps;
• Data Items: Safety, Pavements, Interchanges and Ramps, Freight, and Capacity; and
• Data Quality and Process Improvement.
The FHWA has prepared the draft version of the HPMS Reassessment Recommendations Report after taking into consideration comments made directly through the docket, raised at all workshops, and collected through other outreach efforts. Comments on the draft report should be submitted to the FHWA through the docket on or before June 30, 2007. The FHWA will respond to comments on the draft report generated by this notice and expects to complete its final recommendations report and publish it in the
As a part of the reassessment, the FHWA will conduct a second series of outreach meetings and workshops: On March 7-8 (8 a.m.-4 p.m., e.t.) in Baltimore, MD, on March 13-14 (8 a.m.-4 p.m., p.t.) in Sacramento, CA, and on March 27-28 (8 a.m.-4 p.m., c.t.) in Topeka, KS, at which interested parties are asked to provide input and help to refine a future HPMS direction based on the recommendations made in the draft report. The FHWA will post specific workshop information online at
The FHWA is soliciting public comments on the draft HPMS Reassessment Recommendations Report. Modifications to this draft report may be based on the comments received, if any. The draft report is available in the docket and via the FHWA Web site at:
23 U.S.C. 502; 23 CFR 1.5.
Federal Transit Administration (FTA), DOT.
Notice announcing public meeting agenda and conference call capability.
On January 17, 2007, the Federal Transit Administration (FTA) announced a public meeting regarding the Buy America second notice of proposed rulemaking (SNPRM) to allow the public to ask questions regarding the SNPRM published on November 30, 2006. In the public meeting notice, FTA also extended the comment period to February 28, 2007, to allow affected parties time to carefully consider the changes made in the SNRM and the information presented at the public meeting. This Notice announces the agenda for the public meeting, and a conference call number for interested parties who cannot attend in person.
FTA will hold a public meeting on February 13 and 14, 2007 from 9 a.m. to 4:30 p.m. at the Department of Transportation (DOT) headquarters building (400 7th Street, SW., Washington, DC 20590, Room 2201). Individuals interested in attending the meeting should arrive at the southwest entrance of the DOT building to go through security screening. Please allow a minimum of 15 minutes to clear security. A summary of the meeting will be posted in the docket. FTA will not accept public comment during the public meeting. Instead, interested parties must submit their comments to the docket in order to have their comments considered by FTA.
You may submit comments identified by the docket number [FTA-2005-23082] by any of the following methods:
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Richard Wong, Attorney-Advisor, Office of the Chief Counsel, Federal Transit Administration, 400 Seventh Street, SW., Room 9316, Washington, DC 20590, (202) 366-4011 or
On January 17, 2007, FTA published a Notice of Public Meeting in the
Interested parties who would like to participate in the public meeting but cannot be physically present are invited to use FTA's conference call number at 1-888-603-8914 and to enter the passcode “53081” when prompted. Up to 50 conference call attendees may participate at the same time. Conference call attendees may join and exit the conference call at any time during the public meeting.
The meeting will begin with a brief outline of the SNPRM, followed by in-depth thirty-minute discussion sessions during which FTA will entertain questions on the six key issues proposed in the SNPRM. Any questions not addressed on the first day will be answered on the second. The agenda for the public meeting is as follows:
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before March 12, 2007 to be assured of consideration.
Clearance Officer: Glenn P. Kirkland, (202) 622-3428. Internal Revenue Service, Room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224.
OMB Reviewer: Alexander T. Hunt, (202) 395-7316, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Internal Revenue Service (IRS), Treasury.
Correction to notice and request for comments.
This document contains a correction to a notice and request for comments(Revenue Procedure 2006-54) that was published in the
Larnice Mack, (202) 622-3179 (not a toll-free number).
The notice and request for comments that is the subject of the correction is required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)).
As published, the comment request for Revenue Procedure 2006-54 contains an error that may prove to be misleading and is in need of clarification.
Accordingly, the publication of the comment request for Revenue Procedure 2006-54, which was the subject of FR Doc. E7-1301, is corrected as follows:
On page 4061, column 1, in the preamble, under the caption “Summary”, fourth line from bottom of the paragraph, the language “Revenue Procedure 2006-49,” is corrected to read “Revenue Procedure 2006-54,”.
Department of Veterans Affairs.
Notice of establishment of new system of records.
The Privacy Act of 1974 (5 U.S.C. 552(e)(4)) requires that all agencies publish in the
Comments on this new system of records must be received no later than March 12, 2007. If no public comment is received, the new system will become effective March 12, 2007.
Written comments may be submitted through
John Lawson, Privacy Officer, or Janet Coleman, Office of Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-9515.
The Department of Veterans Affairs Federal Docket Management System (VAFDMS) permits the Department of Veterans Affairs (VA) to identify individuals, who have submitted comments in response to VA rulemaking documents or notices so that communications or other actions, as appropriate and necessary, can be effected, such as to seek clarification of the comment, to directly respond to a comment, and for other activities associated with the rulemaking or notice process. Identification is possible only if the individual voluntarily provides identifying information when submitting a comment. If such information is not furnished, the submitted comments and/or supporting documentation cannot be linked to an individual.
FDMS permits members of the public to search the public comments received by name of the individual submitting the comment. Unless the individual submits the comment anonymously, a name search will result in the comment being displayed for view. Comments may be searched by other means whether submitted anonymously or by an identified individual. If the comment is submitted electronically using FDMS, the viewed comment will not include the name of the submitter or any other identifying information about the individual except that, which the submitter has opted to include as part of his or her general comments. If a comment is submitted by an individual on his or her own behalf, in writing, that has been scanned and uploaded into FDMS, unless the individual submits the comment anonymously, the submitter's name will be on the comment, but other personally identifying information will be redacted before it is scanned and uploaded. Comments submitted on behalf of organizations in writing that have to be scanned and uploaded into FDMS, will not be redacted.
Disclosure may be made to individuals, organizations, private or public agencies, or other entities or individuals with whom VA has a contract or agreement to perform such services as VA may deem practicable for the purposes of laws administered by VA, in order for the contractor, subcontractor, public or private agency, or other entity or individual with whom VA has an agreement or contract to perform the services of the contract or agreement. This routine use includes disclosures by the individual or entity performing the service for VA to any secondary entity or individual to perform an activity that is necessary for individuals, organizations, private or public agencies, or other entities or individuals with whom VA has a contract or agreement to provide the service to VA.
VA may disclose information contained in this system of records, as necessary, to comply with the requirements of the Administrative Procedure Act (APA) that comments are available for public review if submitted in response to VA's solicitation of public comments as part of the Agency's notice and rulemaking activities under the APA. However, VA will not release individually-identifiable personal information, such as an individual's home telephone number, under this routine-use except where VA determines that release of this information is integral to the public's
VA may disclose, on its own initiative, any information in this system, except the names and home addresses of veterans and their dependents, which is relevant to a suspected or reasonably imminent violation of law, whether civil, criminal or regulatory in nature and whether arising by general or program statute or by regulation, rule or order issued pursuant thereto, to a Federal, State, local, tribal, or foreign agency, charged with the responsibility of investigating or prosecuting such violation, or charged with enforcing or implementing the statute, regulation, rule or order. On its own initiative, VA may also disclose the names and addresses of veterans and their dependents to a Federal agency charged with the responsibility of investigating or prosecuting civil, criminal or regulatory violations of law, or charged with enforcing or implementing the statute, regulation, rule or order issued pursuant thereto.
VA may disclose information in this System of Records to the Department of Justice (DoJ), either on VA's initiative or in response to DoJ's request for the information, after either VA or DoJ determines that such information is relevant to DoJ's representation of the United States or any of its components in legal proceedings before a court or adjudicative body, provided that, in each case, the agency also determines prior to disclosure that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which VA collected the records. VA, on its own initiative, may disclose records in this system of records in legal proceedings before a court or administrative body after determining that the disclosure of the records to the court or administrative body is a use of the information contained in the records that is compatible with the purpose for which VA collected the records.
Release of information from these records, pursuant to routine uses, will be made only in accordance with the provisions of the Privacy Act of 1974. The Privacy Act of 1974 permits agencies to disclose information about individuals, without their consent, for a routine use when the information will be used for a purpose that is compatible with the purpose for which the information was collected. In the routine-use disclosures proposed for this new VA system of records, VA will disclose individually-identified information for the following purposes: in connection with VA's administrative notice and rulemaking process; to contractors to perform a function associated with that process; for law-enforcement activities; and in administrative and judicial proceedings. VA has determined that the disclosure of information for the above purposes is a proper and necessary use of the information collected by the VAFDMS system, and is compatible with the purpose for which VA collected the information.
The notice of intent to publish an advance copy of the system notice has been sent to the appropriate Congressional Committees and to the Director of the Office of Management and Budget (OMB), as required by 5 U.S.C. 552a(r ) (Privacy Act), as amended, and guidelines issued by OMB (65 FR 77677), December 12, 2000.
Department of Veterans Affairs Federal Docket Management System (VAFDMS)
Primary location: Electronic records are kept at the U.S. Environmental Protection Agency, Research Triangle Park, NC 27711-0001. Secondary location: Paper records are kept at Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
Individuals who voluntarily provide personal contact information when submitting a public comment and/or supporting materials in response to a Department of Veterans Affairs rulemaking document or notice.
Full name, postal address, e-mail address, phone and fax numbers of the individual submitting comments, the name of the organization or individual that the individual represents (if any), and the comments, as well as other supporting documentation, furnished by the individual. Comments may include personal information about the commenter.
44 U.S.C. 3501, Note; Pub. L. 107-347, sec. 206(d); Note; 5 U.S.C. 301, and 553.
To permit the Department of Veterans Affairs (VA) to identify individuals who have submitted comments in response to VA rulemaking documents or notices, so that communications or other actions, as appropriate and necessary, can be effected, such as to seek clarification of the comment, to directly respond to a comment, and for other activities associated with the rulemaking or notice process.
1. Disclosure may be made to individuals, organizations, private or public agencies, or other entities or individuals with whom VA has a contract or agreement to perform such services as VA may deem practicable for the purposes of laws administered by VA, in order for the contractor, subcontractor, public or private agency, or other entity or individual with whom VA has an agreement or contract to perform the services of the contract or agreement. This routine use includes disclosures by the individual or entity performing the service for VA to any secondary entity or individual to perform an activity that is necessary for individuals, organizations, private or public agencies, or other entities or individuals with whom VA has a contract or agreement to provide the service to VA.
2. VA may disclose information contained in this System of Records, as necessary, to comply with the requirements of the Administrative Procedure Act (APA) that comments are available for public review if submitted in response to VA's solicitation of public comments as part of the Agency's notice and rulemaking activities under the APA. However, VA will not release individually-identifiable personal information, such as an individual's home telephone number, under this routine use, except where VA determines that release of this information is integral to the public's understanding of the comment submitted.
3. VA may disclose, on its own initiative, any information in this system, except the names and home addresses of veterans and their dependents, which is relevant to a suspected or reasonably imminent violation of law, whether civil, criminal or regulatory in nature and whether arising by general or program statute or by regulation, rule or order issued pursuant thereto, to a Federal, State, local, tribal, or foreign agency charged with the responsibility of investigating
4. VA may disclose information in this System of Records to the Department of Justice (DoJ), either on VA's initiative or in response to DoJ's request for the information, after either VA or DoJ determines that such information is relevant to DoJ's representation of the United States or any of its components in legal proceedings before a court or adjudicative body, provided that, in each case, the agency also determines, prior to disclosure, that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which VA collected the records. VA, on its own initiative, may disclose records, in this System of Records, in legal proceedings before a court or administrative body after determining that the disclosure of the records to the court or administrative body is a use of the information contained in the records that is compatible with the purpose for which VA collected the records.
Records are maintained on electronic storage media and paper.
Records are retrieved by various data elements and key word searches, among which are by: Name, Agency, Docket Type, Docket Sub-Type, Agency Docket ID, Docket Title, Docket Category, Document Type, CFR Part, Date Comment Received, and
Electronic records are maintained in a secure, password protected, electronic system that utilizes security hardware and software to include: multiple firewalls, active intruder detection, and role-based access controls. Paper records are maintained in a controlled facility, where physical entry is restricted by the use of locks, guards, and/or administrative procedures. Access to records is limited to those officials who require the records to perform their official duties consistent with the purpose for which the information was collected. All personnel whose official duties require access to the information are trained in the proper safeguarding and use of the information.
Records will be maintained, and disposed of, in accordance with records disposition authority, approved by the Archivist of the United States.
John Lawson, Privacy Officer, Office of Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420; telephone (202) 273-9515.
Individuals seeking to determine whether this System of Records contains information about themselves should address written inquiries to the Office of Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420. Requests should contain the full name, address and telephone number of the individual making the inquiry.
Individuals seeking to access or contest the contents of records about themselves, contained in this System of Records, should address a written request, including full name, address and telephone number to the Office of Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420.
(See Record Access Procedure above.)
Individual.
There are no exemptions being claimed for this system.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to amend the new source performance standards (NSPS) for electric utility steam generating units and industrial-commercial-institutional steam generating units. On February 27, 2006, EPA promulgated amendments to the NSPS for steam generating units. EPA is proposing to amend specific provisions in the NSPS for steam generating units to resolve issues and questions raised by petitioners for reconsideration of the promulgated amendments, and to correct technical and editorial errors that have been identified since promulgation. In addition, the proposed rule would update the grammatical style of the four NSPS steam generating unit subparts to be consistent across all of the subparts.
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Mr. Christian Fellner, Energy Strategies Group, Sector Policies and Programs Division (D243-01), U.S. EPA, Research Triangle Park, NC 27711, telephone number (919) 541-4003, facsimile number (919) 541-5450, electronic mail (e-mail) address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the proposed rule. To determine whether your facility is regulated by the proposed rule, you should examine the applicability criteria in § 60.40a, § 60.40b, or § 60.40c of 40 CFR part 60. If you have any questions regarding the applicability of the proposed rule to a particular entity, contact the person listed in the preceding
EPA promulgated amendments to the new source performance standards for steam generating units on February 27, 2006 (71 FR 9866). The amendments added new emissions limits and compliance requirements applicable to units constructed, modified, or reconstructed after February 28, 2005, for electric utility steam generating units in 40 CFR part 60, subpart Da; industrial-commercial-institutional steam generating units in 40 CFR part 60, subpart Db; and small industrial-commercial-institutional steam generating units in 40 CFR part 60, subpart Dc. In addition, an alternative sulfur dioxide (SO
Petitions for reconsideration of the amendments were filed by the Utility Air Regulatory Group and the Council of Industrial Boiler Owners. The EPA has decided to grant reconsideration to the amendments to the extent specified in the proposed rule. The amendments proposed by this action address issues for which the petitioners requested reconsideration
As part of this action, EPA is also proposing to amend other rule language to correct technical omissions, typographical errors, cross-reference errors, grammatical errors, and various other issues that have been identified since promulgation. The proposed amendments would not significantly change EPA's original projections for the rule's compliance costs, environmental benefits, burden on industry, or the number of affected facilities.
Finally, as part of the February 28, 2005, proposal to the steam generating unit NSPS, EPA proposed several amendments designed to minimize the continuous emission monitoring systems (CEMS) burden for sources subject to both the NSPS under 40 CFR part 60 and the acid rain regulations under 40 CFR part 75 (70 FR 9720). The intent of these proposed amendments is to address the inconsistent and duplicative CEM requirements in the two rules while still maintaining the integrity of the separate NSPS and acid rain programs. EPA received five comment letters on these proposed amendments. The comments were generally supportive of the amendments, but due to the need for additional internal EPA review, EPA did not include the CEM protocol amendments with the other steam generating unit NSPS amendments that were promulgated on February 27, 2006. EPA intends to include the final CEM requirement amendments with the final action of this reconsideration. A detailed description of the proposed amendments to the CEM requirements is available in the docket.
EPA is proposing to amend 40 CFR part 60, subparts D, Da, Db, and Dc to clarify the intent for applying and implementing specific rule requirements and to correct unintentional technical omissions and editorial errors. A summary of the proposed substantive amendments to the NSPS for steam generating units and the rationale for these amendments are presented below.
In addition, EPA is proposing to republish 40 CFR 60.17 (Incorporations by reference) and subparts D, Da, Db, and Dc in their entirety. The proposed amendments include updating 40 CFR 60.17 to be consistent with the recent formatting style used in subpart KKKK of 40 CFR part 60 and revising the wording and writing style to be more consistent across all the NSPS subparts applicable to steam generating units. EPA does not intend for these editorial revisions to substantively change any of
Subpart D of 40 CFR part 60 establishes nitrogen oxides (NO
When subpart D was originally developed, the NO
EPA is proposing to allow owners and operators of steam generating units subject to subpart D to elect to comply with the NO
Since averaging time is an important consideration when selecting the numerical level for an emissions standard, the limits EPA is proposing as an alternative to the existing 3-hour average based standards are significantly lower and represent emissions levels achieved by electric utility steam generating units retrofitted with post-combustion controls. As an alternative to the existing 3-hour average subpart D SO
To use the alternative standards, an owner or operator would request permission from the EPA Administrator for the affected source to begin complying with the alternative 30-day average NO
The amendments to subpart Da in 40 CFR part 60, promulgated on February 27, 2006, allow affected owners and operators of electric utility steam generating units subject to subpart Da to install and operate a CEMS that measures PM as an alternative to continuously monitoring opacity. EPA is proposing that the same alternative monitoring provisions be added to subpart D. EPA has concluded that since PM CEMS measure the pollutant of primary interest they provide adequate assurance of PM control device performance, and continuous opacity monitoring is an unnecessary burden to affected sources using PM CEMS.
Under subpart D, all affected electric utility steam generating units (including those that only burn natural gas) are subject to PM and visible emissions limit standards. Steam generating units burning gaseous fuels do not require a continuous opacity monitoring system (COMS), but all other affected facilities burning liquid or solid fuels are required to continuously monitor opacity. Opacity readings from the COMS are not only used to determine compliance with the opacity standard, but also serve as a continuous indicator of PM emission levels. Elevated opacity levels are often indications of operating problems with the PM control device and/or poor combustion.
In general, the level of filterable PM emissions from oil-fired steam generating units is a function of the completeness of fuel combustion as well as the ash content in the oil. Distillate oil contains negligible ash content, so the filterable PM emissions from distillate oil-fired steam generating units are primarily comprised of carbon particles resulting from incomplete combustion of the oil. Residual oil contains larger amounts of ash (as much as 0.2 percent) and additional PM results from the formation of coke, black smoke (soot), and sulfates. Coke is comprised of larger particles and results from poor atomization of the fuel; soot results from incomplete fuel combustion. The larger coke particles comprise the majority of the mass of PM emissions, but are not highly visible. Smaller black smoke particles are comprised of fine particulate carbon and
Carbon monoxide (CO) emissions from oil-fired steam generating units depend on the combustion efficiency of the fuel. The presence of CO in the exhaust gases from an oil-fired steam generating unit results principally from incomplete fuel combustion, and is an indicator of the levels of both PM and organic compound emissions, and that a unit is being operated improperly or not being well maintained. Furthermore, the PM emissions from oil-fired steam generating units are related to the sulfur content of the oil. Naturally low sulfur crude oil and desulfurized oils are higher quality fuels and exhibit lower viscosity and reduced asphaltene, ash, and sulfur content, which results in better atomization and improved overall combustion properties.
To provide additional flexibility and decrease the compliance burden on affected facilities, EPA is requesting comments on whether oil-fired steam generating units should be permitted to continuously monitoring CO as an alternative to continuously monitoring opacity. Many oil-fired steam generating units subject to subpart D are able to achieve the PM emissions limit without the use of post-combustion PM controls (
If this alternative is added to subpart D, owners and operators of affected oil-fired steam generating units without post-combustion technologies to reduce PM, SO
To select a CO value for the action value, EPA reviewed CO emissions data and CO emissions limits established by State air permits and for existing oil-fired steam generating units. Based on this review, EPA concluded that daily average CO emissions levels below 0.15 lb/MMBtu are representative of the levels of CO emissions achievable by properly operated and maintained oil-fired steam generating units. Thus, for this alternative EPA proposes to use a daily average CO emissions level of 0.15 lb/MMBtu as the action level above which corrective action would be required. EPA is requesting comment on whether this is an appropriate level or whether a different level and/or averaging time should be used.
The fuel characteristics of distillate oil and low sulfur oils result in inherently lower PM emissions. EPA is proposing the CO monitoring alternative be restricted to only those steam generating units burning distillate oil and residual oil that contains no more than 0.30 percent sulfur. As another option, since distillate oil containing no more than 0.05 weight percent sulfur (500 parts per million (ppm) S) has relatively low emissions, should steam generating units burning 500 ppm S distillate oil exclusively or in combination with gaseous fuels be exempt from the COMS requirement, while all other oil-fired facilities would still be required to install COMS?
Finally, should the CO level of 0.15 lb/MMBtu be established as a CO emissions limit or as a deviation that triggers corrective action? If exceeding the CO level is a deviation requiring the owner or operator to take corrective action, what percent of the time should an affected source be allowed to exceed the CO action level before it is considered a potential violation? As an alternative, since monitoring CO provides equivalent or superior protection to the environment as monitoring opacity, would it be appropriate to exempt oil-fired steam generating units monitoring CO emissions from the opacity standard completely? If oil-fired steam generating units were exempt from the opacity standard, the CO level would be established as a CO emissions limit and any exceedance above the level during operation would be a potential violation. Draft language EPA is considering is available in the docket.
EPA is proposing language to clarify the applicability of subpart Da to electric utility steam generating units to clearly state the intent of the amendments published on February 27, 2006. EPA is revising 40 CFR 60.40Da to clarify that integrated gasification combined cycle (IGCC) facilities are subject to subpart Da, and not the stationary combustion turbine NSPS, subpart KKKK, 40 CFR part 60.
Compliance with the PM emissions limits in subpart Da is determined by conducting performance tests, unless the owner or operator elects to demonstrate compliance using PM CEMS. During the performance test, the owner or operator also establishes opacity and appropriate control device operating parameter limits based on the actual values measured during the test. Following the performance test, the owner or operator continuously monitors opacity and the selected operating parameters with respect to the established limits. An owner or operator of an affected steam generating unit using an ESP must monitor voltage and secondary current; while affected sources using a fabric filter must install and monitor bag leak detectors. If the threshold values are exceeded, the owner or operator is required to perform a new performance test to demonstrate that the affected source is still in compliance with the applicable emissions limit.
The PM not collected by an ESP and emitted in the ESP exhaust gas stream has a relatively constant size distribution, which does not change significantly as the ESP performance changes. Consequently, ESP opacity variations from the baseline established during the performance test reflect changes in PM mass emissions. For fabric filters, the opacity and PM relationship is not as constant. An increase in PM emissions from a fabric filter can occur from holes developing
EPA is soliciting comment on whether opacity, in conjunction with either monitoring ESP parameters or using fabric filter bag leak detectors, are adequate and the appropriate monitoring parameters for demonstrating continuous proper operation of the PM control device. If not, what parameters should be monitored, and what percent deviation from the baseline is appropriate? EPA is specifically asking if the 110 percent of the baseline opacity value measured during the performance test is an appropriate indicator of the need for a new performance test. Would it be appropriate to add a 5 percent allowable deviation (on a 30-day rolling average) above the baseline opacity or set a lower indicator limit of 5 percent per clock hour regardless of the opacity value measured during the PM performance test? Since facilities using fabric filters generally have low opacity emissions, an hourly opacity limit of 5 percent would apply for them. In contrast, facilities using ESP to control PM emissions tend to have higher opacity emissions, and would still be able to establish a baseline opacity.
To monitor the performance of an ESP, are voltage and secondary current appropriate additional parameters to monitor, and is the 10 percent deviation from the baseline an appropriate amount of variation to trigger a new performance test? As an alternative to establishing a baseline voltage and secondary current, should daily use of an ESP predictive performance computer model be required? One advantage of using a predictive ESP model is that ESP performance is impacted by the properties of the ash. Without using a model that accounts for both the ash characteristics (amount and resistivity) and the ESP operating parameters, voltage and secondary current cannot be directly correlated to PM emissions. If use of a predictive ESP model was added, an affected facility would be required to establish the model parameters during each performance test and then use daily average ash characteristics and ESP parameters to determine if a new performance test has been triggered. Also, since ash characteristics vary significantly even within the same coal type, EPA is considering requiring that the baseline be re-determined (or model parameters adjusted) each time the affected facility changes the ratio of fuels used or takes delivery from a new coal mine or supplier. In addition, to monitor the performance of a fabric filter, is a 5 percent bag leak detector alarm rate on a 30-day rolling basis an appropriate trigger for a performance test?
EPA is also proposing to shorten the time period required to conduct the “triggered” performance test from 60 days to 45 operating days. Should the period be further shortened to 30 operating days from the day of the initial exceedance, or is 60 operating days appropriate?
One technical error EPA is correcting is the continuous opacity monitoring requirements for oil-fired steam generating units subject to subparts Da, Db, and Dc. Affected industrial, commercial, and institutional steam generating units burning only low sulfur oil have relatively low filterable particulate matter (PM) emissions and are exempt from the PM standard, but still must continuously monitor opacity. For these units, opacity serves both as an emissions limit on visible emissions and as an indicator that the steam generating unit and associated air pollution controls are being properly maintained and operated. The intent of the amendments was to maintain the PM exemption for affected facilities burning low sulfur oil and therefore not require an initial PM performance test. It was not the intent of the amendments to eliminate continuous opacity monitoring for these facilities without first requesting public comment.
Subpart Da requires all affected existing oil-fired steam generating units to demonstrate compliance with the PM standard through a performance test and installation of a COMS to monitor visible emissions. Similar to subpart D, EPA is requesting comment on whether affected steam generating units burning distillate oil containing less than 0.05 weight percent sulfur (500 ppm S) should be exempt from the COMS requirement. As an alternative, should EPA permit low sulfur oil-fired subpart Da affected facilities without PM, SO
For owners and operators of affected electric utility steam generating units electing to use PM CEMS to demonstrate continuous compliance with the applicable PM emissions limit, EPA is proposing a phased data availability requirement. Initially, PM CEMS hourly averages would be required to be obtained for a minimum of 75 percent of all operating hours on a 30-day rolling average basis. Beginning on January 1, 2012, valid PM CEMS hourly averages would be required for a minimum of 90 percent of all operating hours on a 30-day rolling average basis; this value is consistent with the recently amended 90 percent data availability requirement in subpart Da for NO
EPA is also requesting comments on the proper emissions averaging time for units electing to use PM CEMS. EPA is proposing to maintain that PM emissions be averaged over each operating day, but is requesting comments on whether, alternatively, this average should be on an 8-hour, 24-hour, 30-day, or other appropriate rolling average period. Longer averaging times allow for more stable emission rates and tend toward a lower standard. Shorter averaging times introduce more variability in emission rates and tend toward higher standards. EPA requests that each commenter provide an appropriate emission standard for use with any suggested alternate averaging time.
EPA is proposing that steam generating units subject to subpart Db that burn natural gas or coke oven gas
EPA is also proposing to revise the procedure used to grant site-specific NO
Because of the specific characteristics of the steel industry, EPA is proposing to allow a 30-day exceedance per year from the SO
EPA is proposing to amend 40 CFR 60.49b(r) to add a detailed procedure for affected facilities complying with the fuel based limit.
Since COG-fired steam generating units have filterable PM emissions similar to natural gas, EPA is proposing to exempt industrial-commercial-institutional steam generating units burning COG from the COM requirement.
Under subpart Db, 40 CFR part 60, affected facilities burning coal (except COG), wood, and oil (other than very low sulfur oil) are subject to the PM standard. All coal (except COG), wood, and oil-fired affected facilities are subject to the opacity standard, and are required to install a COMS. Consistent with the CO monitoring alternative for steam generating units subject to subparts D or Da as discussed in Section A.3 of this notice, EPA is proposing to exempt affected industrial-commercial-institutional steam generating units not using post-combustion technology to reduce SO
EPA is proposing that industrial-commercial-institutional steam generating units subject to subpart Dc that burn natural gas or low-sulfur oil be exempt from the PM emissions standard. This amendment reflects EPA's intent for applying the PM emissions limits to industrial-commercial-institutional steam generating units subject to subpart Dc, and would be consistent with the exemption from the PM emissions limits allowed for units subject to Dc that were constructed before February 28, 2005.
EPA is proposing to clarify the fuel recordkeeping requirements in 40 CFR 60.48c(g). Owners or operators of steam generating units combusting only natural gas, wood, and distillate oil containing less than 0.5 weight percent sulfur may elect to record fuel usage amounts on a monthly instead of daily basis. In addition, owners or operators of steam generating units with maximum heat input capacities of less than 30 MMBtu/hr and combusting coal and residual oil may elect to record the amounts of fuels combusted each calendar month. EPA has concluded that allowing monthly fuel usage monitoring for these steam generating units provides adequate assurance of compliance, as well as minimizing the burden to affected facilities.
EPA is considering and requesting comments on whether owners or operators of multiple steam generating units located on a contiguous property facility where the only fuels combusted in any steam generating unit located on that property are natural gas, wood, and distillate oil containing no more than 0.50 weight percent sulfur should have the option to elect to only record the total amounts of fuels delivered to the property each calendar month instead of the amount combusted at each affected facility. Draft language EPA is requesting comment on for a potential 40 CFR 60.48c(g)(3) is as follows:
“(3) As an alternative to meeting the requirements of paragraph (g)(1) of this section, the owner or operator of an affected facility or multiple affected facilities located on a contiguous property unit where the only fuels combusted in any steam generating unit (including steam generating units not subject to this subpart) at that property are natural gas, wood, distillate oil meeting the most current requirements in § 60.42c to use fuel certification to demonstrate compliance with the SO
This alternative would be restricted to properties where no coal or residual oil is combusted in any steam generating unit located at that property. In addition, the alternative would require that all distillate oil-fired steam generating units located on the property (including those not subject to subpart Dc) only combust distillate oil containing no more than 0.50 weight percent sulfur. If subpart Dc is amended in the future to require the use of lower sulfur distillate oil, all steam generating units located at that property would have to switch to the lower sulfur distillate oil for the owner or operator to elect to use this alternative.
Under subpart Dc, 40 CFR part 60, affected steam generating units burning coal, wood, and oil containing more than 0.5 weight percent sulfur are subject to the PM standard. All coal, wood, and oil-fired affected facilities are subject to the opacity standard, but affected facilities burning distillate oil containing less than 0.5 weight percent sulfur are exempt from the COM requirement. EPA is proposing that owners and operators of affected steam generating units burning desulfurized gasified coal and gasified wood and not using post-combustion PM or SO
Finally, should affected steam generating units burning residual oil containing less than 0.5 weight percent sulfur and/or desulfurized gasified coal and gasified wood have the option of monitoring CO emissions in place of opacity consistent with the CO monitoring alternative for steam generating units subject to subpart D as discussed in Section A.3 of this notice? EPA is requesting comment on whether residual oil-fired steam generating units subject to subpart Dc should be able to elect to install a CO CEMS and maintain daily average CO emission below a level of 0.15 lb/MMBtu in place of the COMS requirement. This would reduce the compliance burden for sources already monitoring CO emissions (due to the boiler MACT or other regulation) and still provide adequate environmental protection.
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the EO. EPA has concluded that the amendments EPA is requesting additional comments on will not change the costs or benefits of the rule.
This action does not impose any new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed amendments on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Although this proposed rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. EPA is proposing to reduce the fuel usage recordkeeping requirement for subpart Dc facilities. In addition, EPA is taking comment on minimizing the continuous opacity monitoring requirements for oil-fired facilities. EPA has, therefore, concluded that this proposed rule will relieve regulatory burden for all affected small entities. EPA continues to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million
EPA has determined that the proposed amendments will contain no Federal mandates that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Thus, the proposed amendments are not subject to the requirements of section 202 and 205 of the UMRA. In addition, EPA determined that the proposed amendments contain no regulatory requirements that might significantly or uniquely affect small governments because the burden is small and the regulation does not unfairly apply to small governments. Therefore, the proposed amendments are not subject to the requirements of section 203 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
The proposed amendments do not have federalism implications. They will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The proposed amendments will not impose substantial direct compliance costs on State or local governments; it will not preempt State law. Thus, Executive Order 13132 does not apply to the proposed amendments.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires 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.” The proposed amendments do not have tribal implications, as specified in Executive Order 13175. The proposed amendments will not have substantial direct effects 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. Thus, Executive Order 13175 does not apply to the proposed amendments.
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This proposed action is not subject to the Executive Order because it is not economically significant as defined under Executive Order 12866, and because EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. The proposed amendments are based on technology performance and not on health or safety risks and, therefore, are not subject to Executive Order 13045.
This proposed action 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.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs us to provide Congress, through OMB, explanations when EPA decides not use available and applicable voluntary consensus standards.
This action does not involve any new technical standards or the incorporation by reference of existing technical standards. Therefore, the consideration of voluntary consensus standards is not relevant to this action.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, chapter I, part 60, of the Code of the Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 60 continues to read as follows:
42 U.S.C. 7401,
2. Section 60.17 is amended by revising paragraph (a) to read as follows:
(a) The following materials are available for purchase from at least one of the following addresses: American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 19428-2959; or ProQuest, 300 North Zeeb Road, Ann Arbor, MI 48106.
(1) ASTM A99-76, 82 (Reapproved 1987), Standard Specification for Ferromanganese, incorporation by reference (IBR) approved for § 60.261.
(2) ASTM A100-69, 74, 93, Standard Specification for Ferrosilicon, IBR approved for § 60.261.
(3) ASTM A101-73, 93, Standard Specification for Ferrochromium, IBR approved for § 60.261.
(4) ASTM A482-76, 93, Standard Specification for Ferrochromesilicon, IBR approved for § 60.261.
(5) ASTM A483-64, 74 (Reapproved 1988), Standard Specification for Silicomanganese, IBR approved for § 60.261.
(6) ASTM A495-76, 94, Standard Specification for Calcium-Silicon and Calcium Manganese-Silicon, IBR approved for § 60.261.
(7) ASTM D86-78, 82, 90, 93, 95, 96, Distillation of Petroleum Products, IBR approved for §§ 60.562-2(d), 60.593(d), and 60.633(h).
(8) ASTM D129-64, 78, 95, 00, Standard Test Method for Sulfur in Petroleum Products (General Bomb Method), IBR approved for §§ 60.106(j)(2), 60.335(b)(10)(i), and Appendix A: Method 19, 12.5.2.2.3.
(9) ASTM D129-00 (Reapproved 2005), Standard Test Method for Sulfur in Petroleum Products (General Bomb Method), IBR approved for § 60.4415(a)(1)(i).
(10) ASTM D240-92, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter, IBR approved for § 60.46(c).
(11) ASTM D240-76, 92, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter, IBR approved for § 60.296(b) and Appendix A: Method 19, Section 12.5.2.2.3.
(12) ASTM D270-65, 75, Standard Method of Sampling Petroleum and Petroleum Products, IBR approved for Appendix A: Method 19, Section 12.5.2.2.1.
(13) ASTM D323-82, 94, Test Method for Vapor Pressure of Petroleum Products (Reid Method), IBR approved for §§ 60.111(l), 60.111a(g), 60.111b(g), and 60.116b(f)(2)(ii).
(14) ASTM D388-99 (Reapproved 2004) ε
(15) ASTM D388-77, 90, 91, 95, 98a, Standard Specification for Classification of Coals by Rank, IBR approved for 60.251(b) and (c) of subpart Y of this part.
(16) ASTM D388-77, 90, 91, 95, 98a, 99 (Reapproved 2004) ε
(17) ASTM D396-98, Standard Specification for Fuel Oils, IBR approved for §§ 60.41b of subpart Db of this part and 60.41c of subpart Dc of this part.
(18) ASTM D396-78, 89, 90, 92, 96, 98, Standard Specification for Fuel Oils, IBR approved for 60.111(b) of subpart K of this part and 60.111a(b) of subpart Ka of this part.
(19) ASTM D975-78, 96, 98a, Standard Specification for Diesel Fuel Oils, IBR approved for §§ 60.111(b) of subpart K of this part and 60.111a(b) of subpart Ka of this part.
(20) ASTM D1072-80, 90 (Reapproved 1994), Standard Test Method for Total Sulfur in Fuel Gases, IBR approved for § 60.335(b)(10)(ii).
(21) ASTM D1072-90 (Reapproved 1999), Standard Test Method for Total Sulfur in Fuel Gases, IBR approved for § 60.4415(a)(1)(ii).
(22) ASTM D1137-75, Standard Method for Analysis of Natural Gases and Related Types of Gaseous Mixtures by the Mass Spectrometer, IBR approved for § 60.45(f)(5)(i).
(23) ASTM D1193-77, 91, Standard Specification for Reagent Water, IBR approved for Appendix A: Method 5, Section 7.1.3; Method 5E, Section 7.2.1; Method 5F, Section 7.2.1; Method 6, Section 7.1.1; Method 7, Section 7.1.1; Method 7C, Section 7.1.1; Method 7D, Section 7.1.1; Method 10A, Section 7.1.1; Method 11, Section 7.1.3; Method 12, Section 7.1.3; Method 13A, Section 7.1.2; Method 26, Section 7.1.2; Method 26A, Section 7.1.2; and Method 29, Section 7.2.2.
(24) ASTM D1266-87, 91, 98, Standard Test Method for Sulfur in Petroleum Products (Lamp Method), IBR approved for §§ 60.106(j)(2) and 60.335(b)(10)(i).
(25) ASTM D1266-98 (Reapproved 2003) ε
(26) ASTM D1475-60 (Reapproved 1980), 90, Standard Test Method for Density of Paint, Varnish Lacquer, and Related Products, IBR approved for § 60.435(d)(1), Appendix A: Method 24, Section 6.1; and Method 24A, Sections 6.5 and 7.1.
(27) ASTM D1552-83, 95, 01, Standard Test Method for Sulfur in Petroleum Products (High-Temperature Method), IBR approved for §§ 60.106(j)(2), 60.335(b)(10)(i), and Appendix A: Method 19, Section 12.5.2.2.3.
(28) ASTM D1552-03, Standard Test Method for Sulfur in Petroleum Products (High-Temperature Method), IBR approved for § 60.4415(a)(1)(i).
(29) ASTM D1826-94, Standard Test Method for Calorific Value of Gases in Natural Gas Range by Continuous Recording Calorimeter, IBR approved for §§ 60.45(f)(5)(ii) and 60.46(c)(2).
(30) ASTM D1826-77, 94, Standard Test Method for Calorific Value of Gases in Natural Gas Range by Continuous Recording Calorimeter, IBR approved for § 60.296(b)(3) and Appendix A: Method 19, Section 12.3.2.4.
(31) ASTM D1835-03a, Standard Specification for Liquefied Petroleum (LP) Gases, IBR approved for § 60.41Da of subpart Da of this part, 60.41b of subpart Db of this part, and 60.41c of subpart Dc of this part.
(32) ASTM D1945-96, Standard Method for Analysis of Natural Gas by Gas Chromatography, IBR approved for § 60.45(f)(5)(i).
(33) ASTM D1946-77, 90 (Reapproved 1994), Standard Method for Analysis of Reformed Gas by Gas Chromatography, IBR approved for §§ 60.18(f)(3), 60.564(f)(1), 60.614(e)(2)(ii), 60.614(e)(4), 60.664(e)(2)(ii), 60.664(e)(4), 60.704(d)(2)(ii), and 60.704(d)(4).
(34) ASTM D1946-90 (Reapproved 1994), Standard Method for Analysis of Reformed Gas by Gas Chromatography, IBR approved for § 60.45(f)(5)(i).
(35) ASTM D2013-72, 86, Standard Method of Preparing Coal Samples for Analysis, IBR approved for Appendix A: Method 19, Section 12.5.2.1.3.
(36) ASTM D2015-96, Standard Test Method for Gross Calorific Value of Solid Fuel by the Adiabatic Bomb Calorimeter, IBR approved for §§ 60.45(f)(5)(ii) and 60.46(c)(2).
(37) ASTM D2015-77 (Reapproved 1978), 96, Standard Test Method for Gross Calorific Value of Solid Fuel by the Adiabatic Bomb Calorimeter, IBR
(38) ASTM D2016-74, 83, Standard Test Methods for Moisture Content of Wood, IBR approved for Appendix A: Method 28, Section 16.1.1.
(39) ASTM D2234-76, 96, 97b, 98, Standard Methods for Collection of a Gross Sample of Coal, IBR approved for Appendix A: Method 19, Section 12.5.2.1.1.
(40) ASTM D2369-81, 87, 90, 92, 93, 95, Standard Test Method for Volatile Content of Coatings, IBR approved for Appendix A: Method 24, Section 6.2.
(41) ASTM D2382-76, 88, Heat of Combustion of Hydrocarbon Fuels by Bomb Calorimeter (High-Precision Method), IBR approved for §§ 60.18(f)(3), 60.485(g)(6), 60.564(f)(3), 60.614(e)(4), 60.664(e)(4), and 60.704(d)(4).
(42) ASTM D2504-67, 77, 88 (Reapproved 1993), Noncondensable Gases in C3 and Lighter Hydrocarbon Products by Gas Chromatography, IBR approved for § 60.485(g)(5).
(43) ASTM D2584-68 (Reapproved 1985), 94, Standard Test Method for Ignition Loss of Cured Reinforced Resins, IBR approved for § 60.685(c)(3)(i).
(44) ASTM D2597-94 (Reapproved 1999), Standard Test Method for Analysis of Demethanized Hydrocarbon Liquid Mixtures Containing Nitrogen and Carbon Dioxide by Gas Chromatography, IBR approved for § 60.335(b)(9)(i).
(45) ASTM D2622-87, 94, 98, Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-Ray Fluorescence Spectrometry,” IBR approved for §§ 60.106(j)(2) and 60.335(b)(10)(i).
(46) ASTM D2622-05, Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-Ray Fluorescence Spectrometry,” IBR approved for § 60.4415(a)(1)(i).
(47) ASTM D2879-83, 96, 97, Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope, IBR approved for §§ 60.111b(f)(3), 60.116b(e)(3)(ii), 60.116b(f)(2)(i), and 60.485(e)(1).
(48) ASTM D2880-78, 96, Standard Specification for Gas Turbine Fuel Oils, IBR approved for §§ 60.111(b), 60.111a(b), and 60.335(d).
(49) ASTM D2908-74, 91, Standard Practice for Measuring Volatile Organic Matter in Water by Aqueous-Injection Gas Chromatography, IBR approved for § 60.564(j).
(50) ASTM D2986-71, 78, 95a, Standard Method for Evaluation of Air, Assay Media by the Monodisperse DOP (Dioctyl Phthalate) Smoke Test, IBR approved for Appendix A: Method 5, Section 7.1.1; Method 12, Section 7.1.1; and Method 13A, Section 7.1.1.2.
(51) ASTM D3173-73, 87, Standard Test Method for Moisture in the Analysis Sample of Coal and Coke, IBR approved for Appendix A: Method 19, Section 12.5.2.1.3.
(52) ASTM D3176-89, Standard Method for Ultimate Analysis of Coal and Coke, IBR approved for § 60.45(f)(5)(i).
(53) ASTM D3176-74, 89, Standard Method for Ultimate Analysis of Coal and Coke, IBR approved for Appendix A: Method 19, Section 12.3.2.3.
(54) ASTM D3177-75, 89, Standard Test Method for Total Sulfur in the Analysis Sample of Coal and Coke, IBR approved for Appendix A: Method 19, Section 12.5.2.1.3.
(55) ASTM D3178-89, Standard Test Methods for Carbon and Hydrogen in the Analysis Sample of Coal and Coke, IBR approved for § 60.45(f)(5)(i).
(56) ASTM D3246-81, 92, 96, Standard Test Method for Sulfur in Petroleum Gas by Oxidative Microcoulometry, IBR approved for § 60.335(b)(10)(ii).
(57) ASTM D3246-05, Standard Test Method for Sulfur in Petroleum Gas by Oxidative Microcoulometry, IBR approved for § 60.4415(a)(1)(ii).
(58) ASTM D3270-73T, 80, 91, 95, Standard Test Methods for Analysis for Fluoride Content of the Atmosphere and Plant Tissues (Semiautomated Method), IBR approved for Appendix A: Method 13A, Section 16.1.
(59) ASTM D3286-85, 96, Standard Test Method for Gross Calorific Value of Coal and Coke by the Isoperibol Bomb Calorimeter, IBR approved for Appendix A: Method 19, Section 12.5.2.1.3.
(60) ASTM D3370-76, 95a, Standard Practices for Sampling Water, IBR approved for § 60.564(j).
(61) ASTM D3792-79, 91, Standard Test Method for Water Content of Water-Reducible Paints by Direct Injection into a Gas Chromatograph, IBR approved for Appendix A: Method 24, Section 6.3.
(62) ASTM D4017-81, 90, 96a, Standard Test Method for Water in Paints and Paint Materials by the Karl Fischer Titration Method, IBR approved for Appendix A: Method 24, Section 6.4.
(63) ASTM D4057-81, 95, Standard Practice for Manual Sampling of Petroleum and Petroleum Products, IBR approved for Appendix A: Method 19, Section 12.5.2.2.3.
(64) ASTM D4057-95 (Reapproved 2000), Standard Practice for Manual Sampling of Petroleum and Petroleum Products, IBR approved for § 60.4415(a)(1).
(65) ASTM D4084-82, 94, Standard Test Method for Analysis of Hydrogen Sulfide in Gaseous Fuels (Lead Acetate Reaction Rate Method), IBR approved for § 60.334(h)(1).
(66) ASTM D4084-05, Standard Test Method for Analysis of Hydrogen Sulfide in Gaseous Fuels (Lead Acetate Reaction Rate Method), IBR approved for §§ 60.4360 and 60.4415(a)(1)(ii).
(67) ASTM D4177-95, Standard Practice for Automatic Sampling of Petroleum and Petroleum Products, IBR approved for Appendix A: Method 19, Section 12.5.2.2.1.
(68) ASTM D4177-95 (Reapproved 2000), Standard Practice for Automatic Sampling of Petroleum and Petroleum Products, IBR approved for § 60.4415(a)(1).
(69) ASTM D4239-85, 94, 97, Standard Test Methods for Sulfur in the Analysis Sample of Coal and Coke Using High Temperature Tube Furnace Combustion Methods, IBR approved for Appendix A: Method 19, Section 12.5.2.1.3.
(70) ASTM D4294-02, Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-Ray Fluorescence Spectrometry, IBR approved for § 60.335(b)(10)(i).
(71) ASTM D4294-03, Standard Test Method for Sulfur in Petroleum and Petroleum Products by Energy-Dispersive X-Ray Fluorescence Spectrometry, IBR approved for § 60.4415(a)(1)(i).
(72) ASTM D4442-84, 92, Standard Test Methods for Direct Moisture Content Measurement in Wood and Wood-base Materials, IBR approved for Appendix A: Method 28, Section 16.1.1.
(73) ASTM D4444-92, Standard Test Methods for Use and Calibration of Hand-Held Moisture Meters, IBR approved for Appendix A: Method 28, Section 16.1.1.
(74) ASTM D4457-85 (Reapproved 1991), Test Method for Determination of Dichloromethane and 1, 1, 1-Trichloroethane in Paints and Coatings by Direct Injection into a Gas Chromatograph, IBR approved for Appendix A: Method 24, Section 6.5.
(75) ASTM D4468-85 (Reapproved 2000), Standard Test Method for Total Sulfur in Gaseous Fuels by Hydrogenolysis and Rateometric Colorimetry, IBR approved for §§ 60.335(b)(10)(ii) and 60.4415(a)(1)(ii).
(76) ASTM D4629-02, Standard Test Method for Trace Nitrogen in Liquid Petroleum Hydrocarbons by Syringe/Inlet Oxidative Combustion and Chemiluminescence Detection, IBR
(77) ASTM D4809-95, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter (Precision Method), IBR approved for §§ 60.18(f)(3), 60.485(g)(6), 60.564(f)(3), 60.614(d)(4), 60.664(e)(4), and 60.704(d)(4).
(78) ASTM D4810-88 (Reapproved 1999), Standard Test Method for Hydrogen Sulfide in Natural Gas Using Length of Stain Detector Tubes, IBR approved for §§ 60.4360 and 60.4415(a)(1)(ii).
(79) ASTM D5287-97 (Reapproved 2002), Standard Practice for Automatic Sampling of Gaseous Fuels, IBR approved for § 60.4415(a)(1).
(80) ASTM D5403-93, Standard Test Methods for Volatile Content of Radiation Curable Materials, IBR approved for Appendix A: Method 24, Section 6.6.
(81) ASTM D5453-00, Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Motor Fuels and Oils by Ultraviolet Fluorescence, IBR approved for § 60.335(b)(10)(i).
(82) ASTM D5453-05, Standard Test Method for Determination of Total Sulfur in Light Hydrocarbons, Motor Fuels and Oils by Ultraviolet Fluorescence, IBR approved for § 60.4415(a)(1)(i).
(83) ASTM D5504-01, Standard Test Method for Determination of Sulfur Compounds in Natural Gas and Gaseous Fuels by Gas Chromatography and Chemiluminescence, IBR approved for §§ 60.334(h)(1) and 60.4360.
(84) ASTM D5762-02, Standard Test Method for Nitrogen in Petroleum and Petroleum Products by Boat-Inlet Chemiluminescence, IBR approved for § 60.335(b)(9)(i).
(85) ASTM D5865-98, Standard Test Method for Gross Calorific Value of Coal and Coke, IBR approved for § 60.45(f)(5)(ii), 60.46(c)(2), and Appendix A: Method 19, Section 12.5.2.1.3.
(86) ASTM D6216-98, Standard Practice for Opacity Monitor Manufacturers to Certify Conformance with Design and Performance Specifications, IBR approved for Appendix B, Performance Specification 1.
(87) ASTM D6228-98, Standard Test Method for Determination of Sulfur Compounds in Natural Gas and Gaseous Fuels by Gas Chromatography and Flame Photometric Detection, IBR approved for § 60.334(h)(1).
(88) ASTM D6228-98 (Reapproved 2003), Standard Test Method for Determination of Sulfur Compounds in Natural Gas and Gaseous Fuels by Gas Chromatography and Flame Photometric Detection, IBR approved for §§ 60.4360 and 60.4415.
(89) ASTM D6348-03, Standard Test Method for Determination of Gaseous Compounds by Extractive Direct Interface Fourier Transform Infrared (FTIR) Spectroscopy, IBR approved for table 7 of Subpart IIII of this part.
(90) ASTM D6366-99, Standard Test Method for Total Trace Nitrogen and Its Derivatives in Liquid Aromatic Hydrocarbons by Oxidative Combustion and Electrochemical Detection, IBR approved for § 60.335(b)(9)(i).
(91) ASTM D6522-00, Standard Test Method for Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers, and Process Heaters Using Portable Analyzers, IBR approved for § 60.335(a).
(92) ASTM D6667-01, Standard Test Method for Determination of Total Volatile Sulfur in Gaseous Hydrocarbons and Liquefied Petroleum Gases by Ultraviolet Fluorescence, IBR approved for § 60.335(b)(10)(ii).
(93) ASTM D6667-04, Standard Test Method for Determination of Total Volatile Sulfur in Gaseous Hydrocarbons and Liquefied Petroleum Gases by Ultraviolet Fluorescence, IBR approved for § 60.4415(a)(1)(ii).
(94) ASTM D6784-02, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), IBR approved for Appendix B to part 60, Performance Specification 12A, Section 8.6.2.
(95) ASTM E168-67, 77, 92, General Techniques of Infrared Quantitative Analysis, IBR approved for §§ 60.593(b)(2) and 60.632(f).
(96) ASTM E169-63, 77, 93, General Techniques of Ultraviolet Quantitative Analysis, IBR approved for §§ 60.593(b)(2) and 60.632(f).
(97) ASTM E260-73, 91, 96, General Gas Chromatography Procedures, IBR approved for §§ 60.593(b)(2) and 60.632(f).
3. Part 60 is amended by revising subpart D to read as follows:
(a) The affected facilities to which the provisions of this subpart apply are:
(1) Each fossil-fuel-fired steam generating unit of more than 73 megawatts (MW) heat input rate (250 million British thermal units per hour (MMBtu/hr)).
(2) Each fossil-fuel and wood-residue-fired steam generating unit capable of firing fossil fuel at a heat input rate of more than 73 MW (250 MMBtu/hr).
(b) Any change to an existing fossil-fuel-fired steam generating unit to accommodate the use of combustible materials, other than fossil fuels as defined in this subpart, shall not bring that unit under the applicability of this subpart.
(c) Except as provided in paragraph (d) of this section, any facility under paragraph (a) of this section that commenced construction or modification after August 17, 1971, is subject to the requirements of this subpart.
(d) The requirements of §§ 60.44 (a)(4), (a)(5), (b) and (d), and 60.45(f)(4)(vi) are applicable to lignite-fired steam generating units that commenced construction or modification after December 22, 1976.
(e) Any facility covered under subpart Da is not covered under this subpart.
As used in this subpart, all terms not defined herein shall have the meaning given them in the Act, and in subpart A of this part.
(a) On and after the date on which the performance test required to be conducted by § 60.8 is completed, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility any gases that:
(1) Contain PM in excess of 43 nanograms per joule (ng/J) heat input (0.10 lb/MMBtu) derived from fossil fuel or fossil fuel and wood residue.
(2) Exhibit greater than 20 percent opacity except for one six-minute period per hour of not more than 27 percent opacity.
(b)(1) On or after December 28, 1979, no owner or operator shall cause to be discharged into the atmosphere from the Southwestern Public Service Company's Harrington Station #1, in Amarillo, TX, any gases which exhibit greater than 35 percent opacity, except that a maximum of 42 percent opacity shall be permitted for not more than 6 minutes in any hour.
(2) Interstate Power Company shall not cause to be discharged into the atmosphere from its Lansing Station Unit No. 4 in Lansing, IA, any gases which exhibit greater than 32 percent opacity, except that a maximum of 39 percent opacity shall be permitted for not more than six minutes in any hour.
(a) On and after the date on which the performance test required to be conducted by § 60.8 is completed, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility any gases that contain SO
(1) 340 ng/J heat input (0.80 lb/MMBtu) derived from liquid fossil fuel or liquid fossil fuel and wood residue.
(2) 520 ng/J heat input (1.2 lb/MMBtu) derived from solid fossil fuel or solid fossil fuel and wood residue, except as provided in paragraph (e) of this section.
(b) When different fossil fuels are burned simultaneously in any combination, the applicable standard (in ng/J) shall be determined by proration using the following formula:
(c) Compliance shall be based on the total heat input from all fossil fuels burned, including gaseous fuels.
(d) As an alternate to reporting excess emissions every 3 contiguous one hour periods as required under paragraphs (a) and (b) of this section, an owner or operator can petition the Administrator (in writing) to comply with § 60.43Da(i)(3) of subpart Da of this part. If the Administrator grants the petition, the source will from then on (unless the unit is modified or reconstructed in the future) have to comply with the requirements in § 60.43Da(i)(3) of subpart Da of this part.
(e) Units 1 and 2 (as defined in appendix G of this part) at the Newton Power Station owned or operated by the Central Illinois Public Service Company will be in compliance with paragraph (a)(2) of this section if Unit 1 and Unit 2 individually comply with paragraph (a)(2) of this section or if the combined emission rate from Units 1 and 2 does not exceed 470 ng/J (1.1 lb/MMBtu) combined heat input to Units 1 and 2.
(a) On and after the date on which the performance test required to be conducted by § 60.8 is completed, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility any gases that contain NO
(1) 86 ng/J heat input (0.20 lb/MMBtu) derived from gaseous fossil fuel.
(2) 129 ng/J heat input (0.30 lb/MMBtu) derived from liquid fossil fuel, liquid fossil fuel and wood residue, or gaseous fossil fuel and wood residue.
(3) 300 ng/J heat input (0.70 lb/MMBtu) derived from solid fossil fuel or solid fossil fuel and wood residue (except lignite or a solid fossil fuel containing 25 percent, by weight, or more of coal refuse).
(4) 260 ng/J heat input (0.60 lb MMBtu) derived from lignite or lignite and wood residue (except as provided under paragraph (a)(5) of this section).
(5) 340 ng/J heat input (0.80 lb MMBtu) derived from lignite which is mined in North Dakota, South Dakota, or Montana and which is burned in a cyclone-fired unit.
(b) Except as provided under paragraphs (c) and (d) of this section, when different fossil fuels are burned simultaneously in any combination, the applicable standard (in ng/J) is determined by proration using the following formula:
(c) When a fossil fuel containing at least 25 percent, by weight, of coal refuse is burned in combination with gaseous, liquid, or other solid fossil fuel or wood residue, the standard for NO
(d) Cyclone-fired units which burn fuels containing at least 25 percent of lignite that is mined in North Dakota, South Dakota, or Montana remain
(e) As an alternate to reporting excess emissions every 3 contiguous one hour periods as required under paragraphs (a) and (b) of this section, an owner or operator can petition the Administrator (in writing) to comply with § 60.44Da(e)(3) of subpart Da of this part. If the Administrator grants the petition, the source will from then on (unless the unit is modified or reconstructed in the future) have to comply with the requirements in § 60.44Da(e)(3) of subpart Da of this part.
(a) Each owner or operator shall install, calibrate, maintain, and operate continuous emissions monitoring systems (CEMS) for measuring the opacity of emissions, SO
(b) Certain of the CEMS requirements under paragraph (a) of this section do not apply to owners or operators under the following conditions:
(1) For a fossil fuel-fired steam generator that burns only gaseous fossil fuel and that does not use post combustion technology to reduce emissions of SO
(2) For a fossil fuel-fired steam generator that does not use a flue gas desulfurization device, a CEMS for measuring SO
(3) Notwithstanding § 60.13(b), installation of a CEMS for NO
(4) If an owner or operator does not install any CEMS for sulfur oxides and NO
(5) An owner or operator may petition the Administrator (in writing) to install a PM CEMS as an alternative to the CEMS for monitoring opacity emissions.
(c) For performance evaluations under § 60.13(c) and calibration checks under § 60.13(d), the following procedures shall be used:
(1) Methods 6, 7, and 3B of appendix A of this part, as applicable, shall be used for the performance evaluations of SO
(2) Sulfur dioxide or nitric oxide, as applicable, shall be used for preparing calibration gas mixtures under Performance Specification 2 of appendix B to this part.
(3) For affected facilities burning fossil fuel(s), the span value for a continuous monitoring system measuring the opacity of emissions shall be 80, 90, or 100 percent and for a continuous monitoring system measuring sulfur oxides or NO
(4) All span values computed under paragraph (c)(3) of this section for burning combinations of fossil fuels shall be rounded to the nearest 500 ppm.
(5) For a fossil fuel-fired steam generator that simultaneously burns fossil fuel and nonfossil fuel, the span value of all CEMS shall be subject to the Administrator's approval.
(d) [Reserved]
(e) For any CEMS installed under paragraph (a) of this section, the following conversion procedures shall be used to convert the continuous monitoring data into units of the applicable standards (ng/J, lb/MMBtu):
(1) When a CEMS for measuring O
(2) When a CEMS for measuring CO
(f) The values used in the equations under paragraphs (e) (1) and (2) of this section are derived as follows:
(1) E = pollutant emissions, ng/J (lb/MMBtu).
(2) C = pollutant concentration, ng/dscm (lb/dscf), determined by multiplying the average concentration (ppm) for each one-hour period by 4.15 × 10
(3) %O
(4) F, F
(i) For anthracite coal as classified according to ASTM D388 (incorporated by reference, see § 60.17), F = 2,723 × 10
(ii) For subbituminous and bituminous coal as classified according to ASTM D388 (incorporated by reference, see § 60.17), F = 2.637 × 10
(iii) For liquid fossil fuels including crude, residual, and distillate oils, F = 2.476 × 10
(iv) For gaseous fossil fuels, F = 2.347 × 10
(v) For bark F = 2.589 × 10
(vi) For lignite coal as classified according to ASTM D388 (incorporated by reference, see § 60.17), F = 2.659 × 10
(5) The owner or operator may use the following equation to determine an F factor (dscm/J or dscf/MMBtu) on a dry basis (if it is desired to calculate F on a wet basis, consult the Administrator) or F
(i) %H, %C, %S, %N, and %O are content by weight of hydrogen, carbon, sulfur, nitrogen, and O
(ii) GVC is the gross calorific value (kJ/kg, Btu/lb) of the fuel combusted determined by the ASTM test methods D2015 or D5865 for solid fuels and D1826 for gaseous fuels as applicable. (These two methods are incorporated by reference, see § 60.17.)
(iii) For affected facilities which fire both fossil fuels and nonfossil fuels, the F or F
(6) For affected facilities firing combinations of fossil fuels or fossil fuels and wood residue, the F or Fc factors determined by paragraphs (f)(4) or (f)(5) of this section shall be prorated in accordance with the applicable formula as follows:
(g) Excess emission and monitoring system performance reports shall be submitted to the Administrator semiannually for each six-month period in the calendar year. All semiannual reports shall be postmarked by the 30th day following the end of each six-month period. Each excess emission and MSP report shall include the information required in § 60.7(c). Periods of excess emissions and monitoring systems (MS) downtime that shall be reported are defined as follows:
(1)
(i) For sources subject to the opacity standard of § 60.42(b)(1), excess emissions are defined as any six-minute period during which the average opacity of emissions exceeds 35 percent opacity, except that one six-minute average per hour of up to 42 percent opacity need not be reported.
(ii) For sources subject to the opacity standard of § 60.42(b)(2), excess emissions are defined as any six-minute period during which the average opacity of emissions exceeds 32 percent opacity, except that one six-minute average per hour of up to 39 percent opacity need not be reported.
(2)
(i) Any three-hour period during which the average emissions (arithmetic average of three contiguous one-hour periods) of SO
(ii) Any 30 operating day period during which the average emissions (arithmetic average of all one-hour periods during the 30 operating days) of SO
(3)
(i) Any three-hour period during which the average emissions (arithmetic average of three contiguous one-hour periods) exceed the applicable standards under § 60.44, or
(ii) Any 30 operating day period during which the average emissions (arithmetic average of all one-hour periods during the 30 operating days) of NO
(4)
(a) In conducting the performance tests required in § 60.8, and subsequent performance tests as requested by the EPA Administrator, the owner or operator shall use as reference methods and procedures the test methods in appendix A of this part or other methods and procedures as specified in this section, except as provided in § 60.8(b). Acceptable alternative methods and procedures are given in paragraph (d) of this section.
(b) The owner or operator shall determine compliance with the PM, SO
(1) The emission rate (E) of PM, SO
(2) Method 5 of appendix A of this part shall be used to determine the PM concentration (C) at affected facilities without wet flue-gas-desulfurization (FGD) systems and Method 5B of appendix A of this part shall be used to determine the PM concentration (C) after FGD systems.
(i) The sampling time and sample volume for each run shall be at least 60 minutes and 0.85 dscm (30 dscf). The probe and filter holder heating systems in the sampling train shall be set to provide an average gas temperature of 160 ± 14 °C (320 ± 25 °F).
(ii) The emission rate correction factor, integrated or grab sampling and analysis procedure of Method 3B of appendix A of this part shall be used to determine the O
(iii) If the particulate run has more than 12 traverse points, the O
(3) Method 9 of appendix A of this part and the procedures in § 60.11 shall be used to determine opacity.
(4) Method 6 of appendix A of this part shall be used to determine the SO
(i) The sampling site shall be the same as that selected for the particulate sample. The sampling location in the duct shall be at the centroid of the cross section or at a point no closer to the walls than 1 m (3.28 ft). The sampling time and sample volume for each sample run shall be at least 20 minutes and 0.020 dscm (0.71 dscf). Two samples shall be taken during a 1-hour period, with each sample taken within a 30-minute interval.
(ii) The emission rate correction factor, integrated sampling and analysis procedure of Method 3B of appendix A of this part shall be used to determine the O
(5) Method 7 of appendix A of this part shall be used to determine the NO
(i) The sampling site and location shall be the same as for the SO
(ii) For each NO
(iii) The NO
(c) When combinations of fossil fuels or fossil fuel and wood residue are fired, the owner or operator (in order to compute the prorated standard as shown in §§ 60.43(b) and 60.44(b)) shall determine the percentage (w, x, y, or z) of the total heat input derived from each type of fuel as follows:
(1) The heat input rate of each fuel shall be determined by multiplying the gross calorific value of each fuel fired by the rate of each fuel burned.
(2) ASTM Methods D2015, or D5865 (solid fuels), D240 (liquid fuels), or D1826 (gaseous fuels) (all of these methods are incorporated by reference, see § 60.17) shall be used to determine the gross calorific values of the fuels. The method used to determine the calorific value of wood residue must be approved by the Administrator.
(3) Suitable methods shall be used to determine the rate of each fuel burned during each test period, and a material balance over the steam generating system shall be used to confirm the rate.
(d) The owner or operator may use the following as alternatives to the reference methods and procedures in this section or in other sections as specified:
(1) The emission rate (E) of PM, SO
(i) The emission rate (E) shall be computed using the following equation:
(ii) If and only if the average F
(A) When F
(B) When F
(C) When F
(2) For Method 5 or 5B of appendix A of this part, Method 17 of appendix A of this part may be used at facilities with or without wet FGD systems if the stack gas temperature at the sampling location does not exceed an average temperature of 160 °C (320 °F). The procedures of sections 2.1 and 2.3 of Method 5B of appendix A of this part may be used with Method 17 of appendix A of this part only if it is used after wet FGD systems. Method 17 of appendix A of this part shall not be used after wet FGD systems if the effluent gas is saturated or laden with water droplets.
(3) Particulate matter and SO
(i) The filter and impinger apparatus in sections 2.1.5 and 2.1.6 of Method 8 of appendix A of this part is used in place of the condenser (section 2.1.7) of Method 5 of appendix A of this part.
(ii) All applicable procedures in Method 8 of appendix A of this part for the determination of SO
(4) For Method 6 of appendix A of this part, Method 6C of appendix A of this part may be used. Method 6A of appendix A of this part may also be used whenever Methods 6 and 3B of appendix A of this part data are specified to determine the SO
(5) For Method 7 of appendix A of this part, Method 7A, 7C, 7D, or 7E of appendix A of this part may be used. If Method 7C, 7D, or 7E of appendix A of this part is used, the sampling time for each run shall be at least 1 hour and the integrated sampling approach shall be used to determine the O
(6) For Method 3 of appendix A of this part, Method 3A or 3B of appendix A of this part may be used.
(7) For Method 3B of appendix A of this part, Method 3A of appendix A of this part may be used.
4. Subpart Da is revised as follows:
(a) The affected facility to which this subpart applies is each electric utility steam-generating unit:
(1) That is capable of combusting more than 73 megawatts (MW) (250 million British thermal units per hour (MMBtu/hr)) heat input of fossil fuel (either alone or in combination with any other fuel); and
(2) For which construction, modification, or reconstruction is commenced after September 18, 1978.
(b) Combined cycle gas turbines (both the stationary combustion turbine and any associated duct burners) are subject to this part and not subject to subpart GG or KKKK of this part if:
(1) The combined cycle gas turbine is capable of combusting more than 73 MW (250 MMBtu/hr) heat input of fossil fuel (either alone or in combination with any other fuel); and
(2) The combined cycle gas turbine is designed and intended to burn fuels containing 50 percent (by heat input) or more solid-derived fuel not meeting the definition of natural gas on a 12-month rolling average basis; and
(3) The combined cycle gas turbine commenced construction, modification, or reconstruction after February 28, 2005.
(4) This subpart will continue to apply to all other electric utility combined cycle gas turbines that are capable of combusting more than 73 MW (250 MMBtu/hr) heat input of fossil fuel in the heat recovery steam generator. If the heat recovery steam generator is subject to this subpart and the stationary combustion turbine is subject to either subpart GG or KKKK of this part, only emissions resulting from combustion of fuels in the steam-generating unit are subject to this subpart. (The stationary combustion turbine emissions are subject to subpart GG or KKKK, as applicable, of this part).
(c) Any change to an existing fossil-fuel-fired steam generating unit to accommodate the use of combustible materials, other than fossil fuels, shall not bring that unit under the applicability of this subpart.
(d) Any change to an existing steam generating unit originally designed to fire gaseous or liquid fossil fuels, to accommodate the use of any other fuel
As used in this subpart, all terms not defined herein shall have the meaning given them in the Act and in subpart A of this part.
(a) The sum of available system capacity in all neighboring companies.
(b) The sum of the rated capacities of the power interconnection devices between the principal company and all neighboring companies, minus the sum of the electric power load on these interconnections.
(c) The rated capacity of the power transmission lines between the power interconnection devices and the electric generating units (the unit in the principal company that has the malfunctioning flue gas desulfurization system and the unit(s) in the neighboring company supplying replacement electrical power) less the electric power load on these transmission lines.
(1) The electric generation output of an affected facility with a malfunctioning flue gas desulfurization system cannot be reduced or electrical output must be increased because:
(i) All available system capacity in the principal company interconnected with the affected facility is being operated, and
(ii) All available purchase power interconnected with the affected facility is being obtained, or
(2) The electric generation demand is being shifted as quickly as possible from an affected facility with a malfunctioning flue gas desulfurization system to one or more electrical generating units held in reserve by the principal company or by a neighboring company, or
(3) An affected facility with a malfunctioning flue gas desulfurization system becomes the only available unit to maintain a part or all of the principal company's system emergency reserves and the unit is operated in spinning reserve at the lowest practical electric generation load consistent with not causing significant physical damage to the unit. If the unit is operated at a higher load to meet load demand, an emergency condition would not exist unless the conditions under paragraph (1) of this definition apply.
(1) A naturally occurring mixture of hydrocarbon and nonhydrocarbon gases found in geologic formations beneath the earth's surface, of which the principal constituent is methane; or
(2) Liquid petroleum gas, as defined by the American Society of Testing and Materials in ASTM D1835 (incorporated by reference, see § 60.17); or
(3) A mixture of hydrocarbons that maintains a gaseous state at ISO conditions. Additionally, natural gas must either be composed of at least 70 percent methane by volume or have a gross calorific value between 34 and 43 megajoules (MJ) per standard cubic meter (910 and 1,150 Btu per standard cubic foot).
(1) For particulate matter (PM) is:
(i) 3,000 ng/J (7.0 lb/MMBtu) heat input for solid fuel; and
(ii) 73 ng/J (0.17 lb/MMBtu) heat input for liquid fuels.
(2) For sulfur dioxide (SO
(3) For nitrogen oxides (NO
(i) 290 ng/J (0.67 lb/MMBtu) heat input for gaseous fuels;
(ii) 310 ng/J (0.72 lb/MMBtu) heat input for liquid fuels; and
(iii) 990 ng/J (2.30 lb/MMBtu) heat input for solid fuels.
(a) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility for which construction, reconstruction, or modification commenced before or on February 28, 2005, any gases that contain PM in excess of:
(1) 13 ng/J (0.03 lb/MMBtu) heat input derived from the combustion of solid, liquid, or gaseous fuel;
(2) 1 percent of the potential combustion concentration (99 percent reduction) when combusting solid fuel; and
(3) 30 percent of potential combustion concentration (70 percent reduction) when combusting liquid fuel.
(b) On and after the date the initial PM performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility any gases which exhibit greater than 20 percent opacity (6-minute average), except for one 6-minute period per hour of not more than 27 percent opacity.
(c) Except as provided in paragraph (d) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification after February 28, 2005 shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of either:
(1) 18 ng/J (0.14 lb/MWh) gross energy output; or
(2) 6.4 ng/J (0.015 lb/MMBtu) heat input derived from the combustion of solid, liquid, or gaseous fuel.
(d) As an alternative to meeting the requirements of paragraph (c) of this section, the owner or operator of an affected facility for which construction, reconstruction, or modification commenced after February 28, 2005, may elect to meet the requirements of this paragraph. On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility shall cause to be discharged into the atmosphere from that affected facility for which construction, reconstruction, or modification commenced after February 28, 2005, any gases that contain PM in excess of:
(1) 13 ng/J (0.03 lb/MMBtu) heat input derived from the combustion of solid, liquid, or gaseous fuel, and
(2) 0.1 percent of the combustion concentration determined according to the procedure in § 60.48Da(o)(5) (99.9 percent reduction) for an affected facility for which construction or reconstruction commenced after February 28, 2005 when combusting solid, liquid, or gaseous fuel, or
(3) 0.2 percent of the combustion concentration determined according to the procedure in § 60.48Da(o)(5) (99.8 percent reduction) for an affected facility for which modification commenced after February 28, 2005 when combusting solid, liquid, or gaseous fuel.
(a) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility which combusts solid fuel or solid-derived fuel and for which construction, reconstruction, or modification commenced before or on February 28, 2005, except as provided under paragraphs (c), (d), (f) or (h) of this section, any gases that contain SO
(1) 520 ng/J (1.20 lb/MMBtu) heat input and 10 percent of the potential combustion concentration (90 percent reduction); or
(2) 30 percent of the potential combustion concentration (70 percent reduction), when emissions are less than 260 ng/J (0.60 lb/MMBtu) heat input.
(b) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility which combusts liquid or gaseous fuels (except for liquid or gaseous fuels derived from solid fuels and as provided under paragraphs (e) or (h) of this section) and for which construction, reconstruction, or modification commenced before or on February 28, 2005, any gases that contain SO
(1) 340 ng/J (0.80 lb/MMBtu) heat input and 10 percent of the potential combustion concentration (90 percent reduction); or
(2) 100 percent of the potential combustion concentration (zero percent reduction) when emissions are less than 86 ng/J (0.20 lb/MMBtu) heat input.
(c) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility which combusts solid solvent
(d) Sulfur dioxide emissions are limited to 520 ng/J (1.20 lb/MMBtu) heat input from any affected facility which:
(1) Combusts 100 percent anthracite;
(2) Is classified as a resource recovery unit; or
(3) Is located in a noncontinental area and combusts solid fuel or solid-derived fuel.
(e) Sulfur dioxide emissions are limited to 340 ng/J (0.80 lb/MMBtu) heat input from any affected facility which is located in a noncontinental area and combusts liquid or gaseous fuels (excluding solid-derived fuels).
(f) The emission reduction requirements under this section do not apply to any affected facility that is operated under an SO
(g) Compliance with the emission limitation and percent reduction requirements under this section are both determined on a 30-day rolling average basis except as provided under paragraph (c) of this section.
(h) When different fuels are combusted simultaneously, the applicable standard is determined by proration using the following formula:
(1) If emissions of SO
(2) If emissions of SO
(i) Except as provided in paragraphs (j) and (k) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification commenced after February 28, 2005 shall cause to be discharged into the atmosphere from that affected facility, any gases that contain SO
(1) For an affected facility for which construction commenced after February 28, 2005, any gases that contain SO
(i) 180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis; or
(ii) 5 percent of the potential combustion concentration (95 percent reduction) on a 30-day rolling average basis.
(2) For an affected facility for which reconstruction commenced after February 28, 2005, any gases that contain SO
(i) 180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis;
(ii) 65 ng/J (0.15 lb/MMBtu) heat input on a 30-day rolling average basis; or
(iii) 5 percent of the potential combustion concentration (95 percent reduction) on a 30-day rolling average basis.
(3) For an affected facility for which modification commenced after February 28, 2005, any gases that contain SO
(i) 180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis;
(ii) 65 ng/J (0.15 lb/MMBtu) heat input on a 30-day rolling average basis; or
(iii) 10 percent of the potential combustion concentration (90 percent reduction) on a 30-day rolling average basis.
(j) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification commenced after February 28, 2005, and that burns 75 percent or more (by heat input) coal refuse on a 12-month rolling average basis, shall caused to be discharged into the atmosphere from that affected facility any gases that contain SO
(1) For an affected facility for which construction commenced after February 28, 2005, any gases that contain SO
(i) 180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis; or
(ii) 6 percent of the potential combustion concentration (94 percent reduction) on a 30-day rolling average basis.
(2) For an affected facility for which reconstruction commenced after February 28, 2005, any gases that contain SO
(i) 180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis;
(ii) 65 ng/J (0.15 lb/MMBtu) heat input on a 30-day rolling average basis; or
(iii) 6 percent of the potential combustion concentration (94 percent reduction) on a 30-day rolling average basis.
(3) For an affected facility for which modification commenced after February 28, 2005, any gases that contain SO
(i) 180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis;
(ii) 65 ng/J (0.15 lb/MMBtu) heat input on a 30-day rolling average basis; or
(iii) 10 percent of the potential combustion concentration (90 percent reduction) on a 30-day rolling average basis.
(k) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility located in a noncontinental area that commenced construction, reconstruction, or modification commenced after February 28, 2005, shall cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(1) For an affected facility that burns solid or solid-derived fuel, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain SO
(2) For an affected facility that burns other than solid or solid-derived fuel, the owner or operator shall not cause to be discharged into the atmosphere any
(a) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility, except as provided under paragraphs (b), (d), (e), and (f) of this section, any gases that contain NO
(1) NO
(2)
(b) The emission limitations under paragraph (a) of this section do not apply to any affected facility which is combusting coal-derived liquid fuel and is operating under a commercial demonstration permit issued by the Administrator in accordance with the provisions of § 60.47Da.
(c) Except as provided under paragraphs (d), (e), and (f) of this section, when two or more fuels are combusted simultaneously, the applicable standard is determined by proration using the following formula:
(d)(1) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction after July 9, 1997, but before or on February 28, 2005 shall cause to the atmosphere any gases that contain NO
(2) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of affected facility for which reconstruction commenced after July 9, 1997, but before or on February 28, 2005 shall cause to be discharged into the atmosphere any gases that contain NO
(e) Except for an IGCC meeting the requirements of paragraph (f) of this section, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification after February 28, 2005 shall cause to be discharged into the atmosphere from that affected facility any gases that contain NO
(1) For an affected facility for which construction commenced after February 28, 2005, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain NO
(2) For an affected facility for which reconstruction commenced after February 28, 2005, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain NO
(i) 130 ng/J (1.0 lb/MWh) gross energy output on a 30-day rolling average basis; or
(ii) 47 ng/J (0.11 lb/MMBtu) heat input on a 30-day rolling average basis.
(3) For an affected facility for which modification commenced after February 28, 2005, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain NO
(i) 180 ng/J (1.4 lb/MWh) gross energy output on a 30-day rolling average basis; or
(ii) 65 ng/J (0.15 lb/MMBtu) heat input on a 30-day rolling average basis.
(f) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an IGCC subject to the provisions of this subpart that burns liquid fuel as a supplemental fuel and for which construction, reconstruction, or modification commenced after February 28, 2005, shall meet the requirements specified in paragraphs (f)(1) through (3) of this section.
(1) The owner or operator shall not cause to be discharged into the atmosphere any gases that contain NO
(2) When burning liquid fuel exclusively or in combination with solid-derived fuel such that the liquid fuel contributes 50 percent or more of the total heat input to the combined cycle combustion turbine, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain NO
(3) In cases when during a 30-day rolling average compliance period liquid fuel is burned in such a manner to meet the conditions in paragraph (f)(2) of this section for only a portion of the clock hours in the 30-day period, the owner or operator shall not cause to be discharged into the atmosphere any gases that contain NO
(a) For each coal-fired electric utility steam generating unit other than an IGCC electric utility steam generating unit, on and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility for which construction, modification, or reconstruction commenced after January 30, 2004, any gases that contain mercury (Hg) emissions in excess of each Hg emissions limit in paragraphs (a)(1) through (5) of this section that applies to you. The Hg emissions limits in paragraphs (a)(1) through (5) of this section are based on a 12-month rolling average basis using the procedures in § 60.50Da(h).
(1) For each coal-fired electric utility steam generating unit that burns only bituminous coal, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of 20 × 10
(2) For each coal-fired electric utility steam generating unit that burns only subbituminous coal:
(i) If your unit is located in a county-level geographical area receiving greater than 25 inches per year (in/yr) mean annual precipitation, based on the most recent publicly available U.S. Department of Agriculture 30-year data, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of 66 × 10
(ii) If your unit is located in a county-level geographical area receiving less than or equal to 25 in/yr mean annual precipitation, based on the most recent publicly available U.S. Department of Agriculture 30-year data, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of 97 × 10
(3) For each coal-fired electric utility steam generating unit that burns only lignite, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of 175 × 10
(4) For each coal-burning electric utility steam generating unit that burns only coal refuse, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of 16 × 10
(5) For each coal-fired electric utility steam generating unit that burns a blend of coals from different coal ranks (i.e., bituminous coal, subbituminous coal, lignite) or a blend of coal and coal refuse, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of the unit-specific Hg emissions limit established according to paragraph (a)(5)(i) or (ii) of this section, as applicable to the affected unit.
(i) If you operate a coal-fired electric utility steam generating unit that burns a blend of coals from different coal ranks or a blend of coal and coal refuse, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of the computed weighted Hg emissions limit based on the Btu, MWh, or MJ contributed by each coal rank burned during the compliance period and its applicable Hg emissions limit in paragraphs (a)(1) through (4) of this section as determined using Equation 1 in this section. For each affected source, you must comply with the weighted Hg emissions limit calculated using Equation 1 in this section based on the total Hg emissions from the unit and the total Btu, MWh, or MJ contributed by all fuels burned during the compliance period.
(ii) If you operate a coal-fired electric utility steam generating unit that burns a blend of coals from different coal ranks or a blend of coal and coal refuse together with one or more non-regulated, supplementary fuels, you must not discharge into the atmosphere any gases from a new affected source that contain Hg in excess of the computed weighted Hg emission limit based on the Btu, MWh, or MJ
(b) For each IGCC electric utility steam generating unit, on and after the date on which the initial performance test required to be conducted under § 60.8 is completed, no owner or operator subject to the provisions of this subpart shall cause to be discharged into the atmosphere from any affected facility for which construction, modification, or reconstruction commenced after January 30, 2004, any gases that contain Hg emissions in excess of 20 × 10
(a) An owner or operator of an affected facility proposing to demonstrate an emerging technology may apply to the Administrator for a commercial demonstration permit. The Administrator will issue a commercial demonstration permit in accordance with paragraph (e) of this section. Commercial demonstration permits may be issued only by the Administrator, and this authority will not be delegated.
(b) An owner or operator of an affected facility that combusts solid solvent refined coal (SRC-I) and who is issued a commercial demonstration permit by the Administrator is not subject to the SO
(c) An owner or operator of a fluidized bed combustion electric utility steam generator (atmospheric or pressurized) who is issued a commercial demonstration permit by the Administrator is not subject to the SO
(d) The owner or operator of an affected facility that combusts coal-derived liquid fuel and who is issued a commercial demonstration permit by the Administrator is not subject to the applicable NO
(e) Commercial demonstration permits may not exceed the following equivalent MW electrical generation capacity for any one technology category, and the total equivalent MW electrical generation capacity for all commercial demonstration plants may not exceed 15,000 MW.
(a) Compliance with the PM emission limitation under § 60.42Da(a)(1) constitutes compliance with the percent reduction requirements for PM under § 60.42Da(a)(2) and (3).
(b) Compliance with the NO
(c) The PM emission standards under § 60.42Da, the NO
(d) During emergency conditions in the principal company, an affected facility with a malfunctioning flue gas desulfurization system may be operated if SO
(1) Operating all operable flue gas desulfurization system modules, and bringing back into operation any malfunctioned module as soon as repairs are completed,
(2) Bypassing flue gases around only those flue gas desulfurization system modules that have been taken out of operation because they were incapable of any SO
(3) Designing, constructing, and operating a spare flue gas desulfurization system module for an affected facility larger than 365 MW (1,250 MMBtu/hr) heat input (approximately 125 MW electrical output capacity). The Administrator may at his discretion require the owner or operator within 60 days of notification to demonstrate spare module capability. To demonstrate this capability, the owner or operator must demonstrate compliance with the appropriate requirements under paragraph under § 60.43Da(a), (b), (d), (e), and (h) for any period of operation lasting from 24 hours to 30 days when:
(i) Any one flue gas desulfurization module is not operated,
(ii) The affected facility is operating at the maximum heat input rate,
(iii) The fuel fired during the 24-hour to 30-day period is representative of the type and average sulfur content of fuel used over a typical 30-day period, and
(iv) The owner or operator has given the Administrator at least 30 days notice of the date and period of time over which the demonstration will be performed.
(e) After the initial performance test required under § 60.8, compliance with
(f) For the initial performance test required under § 60.8, compliance with the SO
(g) The owner or operator of an affected facility subject to emission limitations in this subpart shall determine compliance as follows:
(1) Compliance with applicable 30-day rolling average SO
(2) Compliance with applicable SO
(3) Compliance with applicable daily average PM emission limitations is determined by calculating the arithmetic average of all hourly emission rates for PM each boiler operating day, except for data obtained during startup, shutdown, and malfunction. Averages are not calculated for boiler operating days with less than 18 hours of valid data. Instead, the valid hourly emission rates are averaged with the immediately following boiler operating day emission rates to determine compliance.
(h) If an owner or operator has not obtained the minimum quantity of emission data as required under § 60.49Da of this subpart, compliance of the affected facility with the emission requirements under §§ 60.43Da and 60.44Da of this subpart for the day on which the 30-day period ends may be determined by the Administrator by following the applicable procedures in section 7 of Method 19 of appendix A of this part.
(i)
(j)
(1) The owner or operator of an affected duct burner shall conduct the performance test required under § 60.8 using the appropriate methods in appendix A of this part. Compliance with the emissions limits under § 60.44Da(a)(1) is determined on the average of three (nominal 1-hour) runs for the initial and subsequent performance tests. During the performance test, one sampling site shall be located in the exhaust of the turbine prior to the duct burner. A second sampling site shall be located at the outlet from the heat recovery steam generating unit. Measurements shall be taken at both sampling sites during the performance test; or
(2) The owner or operator of an affected duct burner may elect to determine compliance by using the continuous emission monitoring system (CEMS) specified under § 60.49Da for measuring NO
(k)
(1) The owner or operator of an affected duct burner used in combined cycle systems shall determine compliance with the applicable NO
(i) The emission rate (E) of NO
(ii) Method 7E of appendix A of this part shall be used to determine the NO
(iii) The owner or operator shall develop, demonstrate, and provide information satisfactory to the Administrator to determine the average hourly gross energy output from the steam generating unit, and the average hourly percentage of the total heat input to the steam generating unit derived from the combustion of fuel in the affected duct burner.
(iv) Compliance with the applicable NO
(2) The owner or operator of an affected duct burner used in a combined cycle system may elect to determine compliance with the applicable NO
(i) The emission rate (E) of NO
(ii) The CEMS specified under § 60.49Da for measuring NO
(iii) The continuous monitoring system specified under § 60.49Da(k) for measuring and determining gross energy output shall be used to determine the average hourly gross energy output from the entire combined cycle unit (O
(iv) The owner or operator may, in lieu of installing, operating, and recording data from the continuous flow monitoring system specified in § 60.49Da(l), determine the mass rate (lb/hr) of NO
(3) When an affected duct burner steam generating unit utilizes a common steam turbine with one or more affected duct burner steam generating units, the owner or operator shall either:
(i) Determine compliance with the applicable NO
(ii) Develop, demonstrate, and provide information satisfactory to the Administrator on methods for apportioning the combined gross energy output from the steam turbine for each of the affected duct burners. The Administrator may approve such demonstrated substitute methods for apportioning the combined gross energy output measured at the steam turbine whenever the demonstration ensures accurate estimation of emissions regulated under this part.
(l)
(m)
(n)
(o)
(1) Conduct an initial performance test according to the requirements in § 60.50Da to demonstrate compliance by the applicable date specified in § 60.8(a) and, thereafter, conduct subsequent performance test within 365 calendar days of the prior test, and
(2) An owner or operator must use opacity monitoring equipment as an indicator of continuous PM control device performance and demonstrate compliance with § 60.42Da(b). In addition, baseline parameters shall be established as the highest clock hour opacity average (average of 10 6-minute measurements) measured by the continuous opacity monitoring system during the PM performance test. If any clock hour average opacity measurement is more than 110 percent of the baseline level, the owner or operator will conduct another performance test within 45 operating days to demonstrate compliance. A new baseline is established during each PM performance test. The new baseline shall not exceed the opacity limit specified in § 60.42Da(b), and
(3) An owner or operator using an ESP to comply with the applicable emission limits shall use voltage and secondary current monitoring equipment to
(4) An owner or operator using a fabric filter to comply with the applicable emission limits shall install, calibrate, maintain, and continuously operate a bag leak detection system according to paragraphs (o)(4)(i) through (viii) of this section.
(i) Install and operate a bag leak detection system for each exhaust stack of the fabric filter.
(ii) Each bag leak detection system must be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations and in accordance with the “Fabric Filter Bag Leak Detection Guidance” (EPA 454/R-98-015, September 1997). This document is available from the U.S. Environmental Protection Agency (U.S. EPA); Office of Air Quality Planning and Standards; Sector Policies and Programs Division; Measurement Policy Group (D243-02), Research Triangle Park, NC 27711. This document is also available on the Technology Transfer Network (TTN) under Emission Measurement Center Continuous Emission Monitoring.
(iii) The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 10 milligrams per actual cubic meter or less.
(iv) The bag leak detection system sensor must provide output of relative or absolute PM loadings.
(v) The bag leak detection system must be equipped with a device to continuously record the output signal from the sensor.
(vi) The bag leak detection system must be equipped with an alarm system that will sound automatically when an increase in relative PM emissions over a preset level is detected. The alarm must be located where it is easily heard by plant operating personnel. Corrective actions must be initiated within 1 hour of a bag leak detection system alarm. If the alarm is engaged for more than 5 percent of the total operating time on a 30-day rolling average basis, a performance test must be performed within 45 operating days to demonstrate compliance.
(vii) For positive pressure fabric filter systems that do not duct all compartments of cells to a common stack, a bag leak detection system must be installed in each baghouse compartment or cell.
(viii) Where multiple bag leak detectors are required, the system's instrumentation and alarm may be shared among detectors, and
(5) An owner or operator of a modified affected source electing to meet the emission limitations in § 60.42Da(d) shall determine the percent reduction in PM by using the emission rate for PM determined by the performance test conducted according to the requirements in paragraph (o)(1) of this section and the ash content on a mass basis of the fuel burned during each performance test run as determined by analysis of the fuel as fired.
(p) As an alternative to meeting the compliance provisions specified in paragraph (o) of this section, an owner or operator may elect to install, certify, maintain, and operate a CEMS measuring PM emissions discharged from the affected facility to the atmosphere and record the output of the system as specified in paragraphs (p)(1) through (p)(8) of this section.
(1) The owner or operator shall submit a written notification to the Administrator of intent to demonstrate compliance with this subpart by using a CEMS measuring PM. This notification shall be sent at least 30 calendar days before the initial startup of the monitor for compliance determination purposes. The owner or operator may discontinue operation of the monitor and instead return to demonstration of compliance with this subpart according to the requirements in paragraph (o) of this section by submitting written notification to the Administrator of such intent at least 30 calendar days before shutdown of the monitor for compliance determination purposes.
(2) Each CEMS shall be installed, certified, operated, and maintained according to the requirements in § 60.49Da(v).
(3) The initial performance evaluation shall be completed no later than 180 days after the date of initial startup of the affected facility, as specified under § 60.8 of subpart A of this part or within 180 days of the date of notification to the Administrator required under paragraph (p)(1) of this section, whichever is later.
(4) Compliance with the applicable emissions limit shall be determined based on the 24-hour daily (block) average of the hourly arithmetic average emissions concentrations using the continuous monitoring system outlet data. The 24-hour block arithmetic average emission concentration shall be calculated using EPA Reference Method 19 of appendix A of this part, section 4.1.
(5) At a minimum, valid CEMS hourly averages shall be obtained for 75 percent of all operating hours on a 30-day rolling average basis. Beginning on January 1, 2012, valid CEMS hourly averages shall be obtained for 90 percent of all operating hours on a 30-day rolling average basis.
(i) At least two data points per hour shall be used to calculate each 1-hour arithmetic average.
(ii) [Reserved]
(6) The 1-hour arithmetic averages required shall be expressed in ng/J, MMBtu/hr, or lb/MWh and shall be used to calculate the boiler operating day daily arithmetic average emission concentrations. The 1-hour arithmetic averages shall be calculated using the data points required under § 60.13(e)(2) of subpart A of this part.
(7) All valid CEMS data shall be used in calculating average emission concentrations even if the minimum CEMS data requirements of paragraph (j)(5) of this section are not met.
(8) When PM emissions data are not obtained because of CEMS breakdowns, repairs, calibration checks, and zero and span adjustments, emissions data shall be obtained by using other monitoring systems as approved by the Administrator or EPA Reference Method 19 of appendix A of this part to provide, as necessary, valid emissions data for a minimum of 90 percent (only 75 percent is required prior to January 1, 2012) of all operating hours per 30-day rolling average.
(a) Except as provided for in paragraphs (t) and (u) of this section, the owner or operator of an affected facility, shall install, calibrate, maintain, and operate a CEMS, and record the output of the system, for measuring the opacity of emissions discharged to the atmosphere. If opacity interference due to water droplets exists in the stack (for example, from the use of an FGD system), the opacity is monitored upstream of the interference (at the inlet to the FGD system). If opacity interference is experienced at all locations (both at the inlet and outlet of the SO
(b) The owner or operator of an affected facility shall install, calibrate, maintain, and operate a CEMS, and record the output of the system, for measuring SO
(1) Sulfur dioxide emissions are monitored at both the inlet and outlet of the SO
(2) For a facility that qualifies under the numerical limit provisions of § 60.43Da(d), (i), (j), or (k) SO
(3) An “as fired” fuel monitoring system (upstream of coal pulverizers) meeting the requirements of Method 19 of appendix A of this part may be used to determine potential SO
(c)(1) The owner or operator of an affected facility shall install, calibrate, maintain, and operate a CEMS, and record the output of the system, for measuring NO
(2) If the owner or operator has installed a NO
(d) The owner or operator of an affected facility shall install, calibrate, maintain, and operate a CEMS, and record the output of the system, for measuring the O
(e) The CEMS under paragraphs (b), (c), and (d) of this section are operated and data recorded during all periods of operation of the affected facility including periods of startup, shutdown, malfunction or emergency conditions, except for CEMS breakdowns, repairs, calibration checks, and zero and span adjustments.
(f)(1) For units that began construction, reconstruction, or modification on or before February 28, 2005, the owner or operator shall obtain emission data for at least 18 hours in at least 22 out of 30 successive boiler operating days. If this minimum data requirement cannot be met with CEMS, the owner or operator shall supplement emission data with other monitoring systems approved by the Administrator or the reference methods and procedures as described in paragraph (h) of this section.
(2) For units that began construction, reconstruction, or modification after February 28, 2005, the owner or operator shall obtain emission data for at least 90 percent of all operating hours for each 30 successive boiler operating days. If this minimum data requirement cannot be met with a CEMS, the owner or operator shall supplement emission data with other monitoring systems approved by the Administrator or the reference methods and procedures as described in paragraph (h) of this section.
(g) The 1-hour averages required under paragraph § 60.13(h) are expressed in ng/J (lb/MMBtu) heat input and used to calculate the average emission rates under § 60.48Da. The 1-hour averages are calculated using the data points required under § 60.13(b). At least two data points must be used to calculate the 1-hour averages.
(h) When it becomes necessary to supplement CEMS data to meet the minimum data requirements in paragraph (f) of this section, the owner or operator shall use the reference methods and procedures as specified in this paragraph. Acceptable alternative methods and procedures are given in paragraph (j) of this section.
(1) Method 6 of appendix A of this part shall be used to determine the SO
(2) Method 7 of appendix A of this part shall be used to determine the NO
(3) The emission rate correction factor, integrated bag sampling and analysis procedure of Method 3B of appendix A of this part shall be used to determine the O
(4) The procedures in Method 19 of appendix A of this part shall be used to compute each 1-hour average concentration in ng/J (1b/MMBtu) heat input.
(i) The owner or operator shall use methods and procedures in this paragraph to conduct monitoring system performance evaluations under § 60.13(c) and calibration checks under § 60.13(d). Acceptable alternative methods and procedures are given in paragraph (j) of this section.
(1) Methods 3B, 6, and 7 of appendix A of this part shall be used to determine O
(2) SO
(3) For affected facilities burning only fossil fuel, the span value for a CEMS for measuring opacity is between 60 and 80 percent and for a CEMS measuring NO
Where:
(4) All span values computed under paragraph (i)(3) of this section for burning combinations of fossil fuels are rounded to the nearest 500 ppm.
(5) For affected facilities burning fossil fuel, alone or in combination with non-fossil fuel, the span value of the SO
(j) The owner or operator may use the following as alternatives to the reference methods and procedures specified in this section:
(1) For Method 6 of appendix A of this part, Method 6A or 6B (whenever Methods 6 and 3 or 3B of appendix A of this part data are used) or 6C of appendix A of this part may be used. Each Method 6B of appendix A of this part sample obtained over 24 hours represents 24 1-hour averages. If Method 6A or 6B of appendix A of this part is used under paragraph (i) of this section, the conditions under § 60.48Da(d)(1)
(2) For Method 7 of appendix A of this part, Method 7A, 7C, 7D, or 7E of appendix A of this part may be used. If Method 7C, 7D, or 7E of appendix A of this part is used, the sampling time for each run shall be 1 hour.
(3) For Method 3 of appendix A of this part, Method 3A or 3B of appendix A of this part may be used if the sampling time is 1 hour.
(4) For Method 3B of appendix A of this part, Method 3A of appendix A of this part may be used.
(k) The procedures specified in paragraphs (k)(1) through (3) of this section shall be used to determine gross output for sources demonstrating compliance with the output-based standard under § 60.44Da(d)(1).
(1) The owner or operator of an affected facility with electricity generation shall install, calibrate, maintain, and operate a wattmeter; measure gross electrical output in MWh on a continuous basis; and record the output of the monitor.
(2) The owner or operator of an affected facility with process steam generation shall install, calibrate, maintain, and operate meters for steam flow, temperature, and pressure; measure gross process steam output in joules per hour (or Btu per hour) on a continuous basis; and record the output of the monitor.
(3) For affected facilities generating process steam in combination with electrical generation, the gross energy output is determined from the gross electrical output measured in accordance with paragraph (k)(1) of this section plus 75 percent of the gross thermal output (measured relative to ISO conditions) of the process steam measured in accordance with paragraph (k)(2) of this section.
(l) The owner or operator of an affected facility demonstrating compliance with an output-based standard under § 60.42Da, § 60.43Da, § 60.44Da, or § 60.45Da shall install, certify, operate, and maintain a continuous flow monitoring system meeting the requirements of Performance Specification 6 of appendix B and procedure 1 of appendix F of this part, and record the output of the system, for measuring the flow of exhaust gases discharged to the atmosphere; or
(m) Alternatively, data from a continuous flow monitoring system certified according to the requirements of 40 CFR 75.20, meeting the applicable quality control and quality assurance requirements of 40 CFR 75.21, and validated according to appendix B of part 75 of this chapter, may be used.
(n) Gas-fired and oil-fired units. The owner or operator of an affected unit that qualifies as a gas-fired or oil-fired unit, as defined in 40 CFR 72.2, may use, as an alternative to the requirements specified in either paragraph (l) or (m) of this section, a fuel flow monitoring system certified and operated according to the requirements of appendix D of part 75 of this chapter.
(o) The owner or operator of a duct burner, as described in § 60.41Da, which is subject to the NO
(p) The owner or operator of an affected facility demonstrating compliance with an Hg limit in § 60.45Da shall install and operate a CEMS to measure and record the concentration of Hg in the exhaust gases from each stack according to the requirements in paragraphs (p)(1) through (p)(3) of this section. Alternatively, for an affected facility that is also subject to the requirements of subpart I of part 75 of this chapter, the owner or operator may install, certify, maintain, operate and quality-assure the data from a Hg CEMS according to § 75.10 of this chapter and appendices A and B to part 75 of this chapter, in lieu of following the procedures in paragraphs (p)(1) through (p)(3) of this section.
(1) The owner or operator must install, operate, and maintain each CEMS according to Performance Specification 12A in appendix B to this part.
(2) The owner or operator must conduct a performance evaluation of each CEMS according to the requirements of § 60.13 and Performance Specification 12A in appendix B to this part.
(3) The owner or operator must operate each CEMS according to the requirements in paragraphs (p)(3)(i) through (iv) of this section.
(i) As specified in § 60.13(e)(2), each CEMS must complete a minimum of one cycle of operation (sampling, analyzing, and data recording) for each successive 15-minute period.
(ii) The owner or operator must reduce CEMS data as specified in § 60.13(h).
(iii) The owner or operator shall use all valid data points collected during the hour to calculate the hourly average Hg concentration.
(iv) The owner or operator must record the results of each required certification and quality assurance test of the CEMS.
(4) Mercury CEMS data collection must conform to paragraphs (p)(4)(i) through (iv) of this section.
(i) For each calendar month in which the affected unit operates, valid hourly Hg concentration data, stack gas volumetric flow rate data, moisture data (if required), and electrical output data (i.e., valid data for all of these parameters) shall be obtained for at least 75 percent of the unit operating hours in the month.
(ii) Data reported to meet the requirements of this subpart shall not include hours of unit startup, shutdown, or malfunction. In addition, for an affected facility that is also subject to subpart I of part 75 of this chapter, data reported to meet the requirements of this subpart shall not include data substituted using the missing data procedures in subpart D of part 75 of this chapter, nor shall the data have been bias adjusted according to the procedures of part 75 of this chapter.
(iii) If valid data are obtained for less than 75 percent of the unit operating hours in a month, you must discard the data collected in that month and replace the data with the mean of the individual monthly emission rate values determined in the last 12 months. In the 12-month rolling average calculation, this substitute Hg emission rate shall be weighted according to the number of unit operating hours in the month for which the data capture requirement of § 60.49Da(p)(4)(i) was not met.
(iv) Notwithstanding the requirements of paragraph (p)(4)(iii) of this section, if valid data are obtained for less than 75 percent of the unit operating hours in another month in that same 12-month rolling average cycle, discard the data collected in that month and replace the data with the highest individual monthly emission rate determined in the last 12 months. In the 12-month rolling average calculation, this substitute Hg emission rate shall be weighted according to the number of unit operating hours in the month for which the data capture requirement of § 60.49Da(p)(4)(i) was not met.
(q) As an alternative to the CEMS required in paragraph (p) of this section, the owner or operator may use a sorbent trap monitoring system (as defined in § 72.2 of this chapter) to monitor Hg concentration, according to the procedures described in § 75.15 of this
(r) For Hg CEMS that measure Hg concentration on a dry basis or for sorbent trap monitoring systems, the emissions data must be corrected for the stack gas moisture content. A certified continuous moisture monitoring system that meets the requirements of § 75.11(b) of this chapter is acceptable for this purpose. Alternatively, the appropriate default moisture value, as specified in § 75.11(b) or § 75.12(b) of this chapter, may be used.
(s) The owner or operator shall prepare and submit to the Administrator for approval a unit-specific monitoring plan for each monitoring system, at least 45 days before commencing certification testing of the monitoring systems. The owner or operator shall comply with the requirements in your plan. The plan must address the requirements in paragraphs (s)(1) through (6) of this section.
(1) Installation of the CEMS sampling probe or other interface at a measurement location relative to each affected process unit such that the measurement is representative of the exhaust emissions (e.g., on or downstream of the last control device);
(2) Performance and equipment specifications for the sample interface, the pollutant concentration or parametric signal analyzer, and the data collection and reduction systems;
(3) Performance evaluation procedures and acceptance criteria (e.g., calibrations, relative accuracy test audits (RATA), etc.);
(4) Ongoing operation and maintenance procedures in accordance with the general requirements of § 60.13(d) or part 75 of this chapter (as applicable);
(5) Ongoing data quality assurance procedures in accordance with the general requirements of § 60.13 or part 75 of this chapter (as applicable); and
(6) Ongoing recordkeeping and reporting procedures in accordance with the requirements of this subpart.
(t) The owner or operator of an affected facility demonstrating compliance with the output-based emissions limitation under § 60.42Da(c)(1) shall install, certify, operate, and maintain a CEMS for measuring PM emissions according to the requirements of paragraph (v) of this section. An owner or operator of an affected source demonstrating compliance with the input-based emission limitation under § 60.42Da(c)(2) may install, certify, operate, and maintain a CEMS for measuring PM emissions according to the requirements of paragraph (v) of this section.
(u) An owner or operator of an affected source that meets the conditions in either paragraph (u)(1) or (2) of this section is exempted from the continuous opacity monitoring system requirements in paragraph (a) of this section and the monitoring requirements in § 60.48Da(o).
(1) A CEMS for measuring PM emissions is used to demonstrate continuous compliance on a boiler operating day average with the emissions limitations under § 60.42Da(a)(1) or § 60.42Da(c)(2) and is installed, certified, operated, and maintained on the affected source according to the requirements of paragraph (v) of this section; or
(2) The affected source burns only gaseous fuels and does not use a post combustion technology to reduce emissions of SO
(v) The owner or operator of an affected facility using a CEMS measuring PM emissions to meet requirements of this subpart shall install, certify, operate, and maintain the CEMS as specified in paragraphs (v)(1) through (v)(3).
(1) The owner or operator shall conduct a performance evaluation of the CEMS according to the applicable requirements of § 60.13, Performance Specification 11 in appendix B of this part, and procedure 2 in appendix F of this part.
(2) During each relative accuracy test run of the CEMS required by Performance Specification 11 in appendix B of this part, PM and O
(i) For PM, EPA Reference Method 5, 5B, or 17 of appendix A of this part shall be used.
(ii) For O
(3) Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with procedure 2 in appendix F of this part. Relative Response Audits must be performed annually and Response Correlation Audits must be performed every 3 years.
(a) In conducting the performance tests required in § 60.8, the owner or operator shall use as reference methods and procedures the methods in appendix A of this part or the methods and procedures as specified in this section, except as provided in § 60.8(b). Section 60.8(f) does not apply to this section for SO
(b) The owner or operator shall determine compliance with the PM standards in § 60.42Da as follows:
(1) The dry basis F factor (O
(2) For the particular matter concentration, Method 5 of appendix A of this part shall be used at affected facilities without wet FGD systems and Method 5B of appendix A of this part shall be used after wet FGD systems.
(i) The sampling time and sample volume for each run shall be at least 120 minutes and 1.70 dscm (60 dscf). The probe and filter holder heating system in the sampling train may be set to provide an average gas temperature of no greater than 160 ± 14 °C (320 ± 25 °F).
(ii) For each particulate run, the emission rate correction factor, integrated or grab sampling and analysis procedures of Method 3B of appendix A of this part shall be used to determine the O
(3) Method 9 of appendix A of this part and the procedures in § 60.11 shall be used to determine opacity.
(c) The owner or operator shall determine compliance with the SO
(1) The percent of potential SO
(2) The procedures in Method 19 of appendix A of this part may be used to determine percent reduction (%R
(3) The procedures in Method 19 of appendix A of this part shall be used to determine the percent SO
(4) The appropriate procedures in Method 19 of appendix A of this part shall be used to determine the emission rate.
(5) The CEMS in § 60.49Da(b) and (d) shall be used to determine the concentrations of SO
(d) The owner or operator shall determine compliance with the NO
(1) The appropriate procedures in Method 19 of appendix A of this part shall be used to determine the emission rate of NO
(2) The continuous monitoring system in § 60.49Da(c) and (d) shall be used to determine the concentrations of NO
(e) The owner or operator may use the following as alternatives to the reference methods and procedures specified in this section:
(1) For Method 5 or 5B of appendix A of this part, Method 17 of appendix A of this part may be used at facilities with or without wet FGD systems if the stack temperature at the sampling location does not exceed an average temperature of 160°C (320°F). The procedures of §§ 2.1 and 2.3 of Method 5B of appendix A of this part may be used in Method 17 of appendix A of this part only if it is used after wet FGD systems. Method 17 of appendix A of this part shall not be used after wet FGD systems if the effluent is saturated or laden with water droplets.
(2) The F
(f) Electric utility combined cycle gas turbines are performance tested for PM, SO
(g) For the purposes of determining compliance with the emission limits in § 60.45Da, the owner or operator of an electric utility steam generating unit which is also a cogeneration unit shall use the procedures in paragraphs (g)(1) and (2) of this section to calculate emission rates based on electrical output to the grid plus 75 percent of the equivalent electrical energy (measured relative to ISO conditions) in the unit's process stream.
(1) All conversions from Btu/hr unit input to MW unit output must use equivalents found in 40 CFR 60.40(a)(1) for electric utilities (i.e., 250 MMBtu/hr input to an electric utility steam generating unit is equivalent to 73 MW input to the electric utility steam generating unit); 73 MW input to the electric utility steam generating unit is equivalent to 25 MW output from the boiler electric utility steam generating unit; therefore, 250 MMBtu input to the electric utility steam generating unit is equivalent to 25 MW output from the electric utility steam generating unit).
(2) Use the Equation 5 in this section to determine the cogeneration Hg emission rate over a specific compliance period.
(h) The owner or operator shall determine compliance with the Hg limit in § 60.45Da according to the procedures in paragraphs (h)(1) through (3) of this section.
(1) The initial performance test shall be commenced by the applicable date specified in § 60.8(a). The required CEMS must be certified prior to commencing the test. The performance test consists of collecting hourly Hg emission data (lb/MWh) with the CEMS for 12 successive months of unit operation (excluding hours of unit startup, shutdown and malfunction). The average Hg emission rate is calculated for each month, and then the weighted, 12-month average Hg emission rate is calculated according to paragraph (h)(2) or (h)(3) of this section, as applicable. If, for any month in the initial performance test, the minimum data capture requirement in § 60.49Da(p)(4)(i) is not met, the owner or operator shall report a substitute Hg emission rate for that month, as follows. For the first such month, the substitute monthly Hg emission rate shall be the arithmetic average of all valid hourly Hg emission rates recorded to date. For any subsequent month(s) with insufficient data capture, the substitute monthly Hg emission rate shall be the highest valid hourly Hg emission rate recorded to date. When the 12-month average Hg emission rate for the initial performance test is calculated, for each month in which there was insufficient data capture, the substitute monthly Hg emission rate shall be weighted according to the number of unit operating hours in that month. Following the initial performance test, the owner or operator shall demonstrate compliance by calculating the weighted average of all monthly Hg emission rates (in lb/MWh) for each 12 successive calendar months, excluding data obtained during startup, shutdown, or malfunction.
(2) If a CEMS is used to demonstrate compliance, follow the procedures in paragraphs (h)(2)(i) through (iii) of this section to determine the 12-month rolling average.
(i) Calculate the total mass of Hg emissions over a month (M), in lb, using either Equation 6 in paragraph (h)(2)(i)(A) of this section or Equation 7 in paragraph (h)(2)(i)(B) of this section, in conjunction with Equation 8 in paragraph (h)(2)(i)(C) of this section.
(A) If the Hg CEMS measures Hg concentration on a wet basis, use Equation 6 below to calculate the Hg mass emissions for each valid hour:
(B) If the Hg CEMS measures Hg concentration on a dry basis, use
(C) Use Equation 8, below, to calculate M, the total mass of Hg emitted for the month, by summing the hourly masses derived from Equation 6 or 7 (as applicable):
(ii) Calculate the monthly Hg emission rate on an output basis (lb/MWh) using Equation 9, below. For a cogeneration unit, use Equation 5 in paragraph (g) of this section instead.
(iii) Until 12 monthly Hg emission rates have been accumulated, calculate and report only the monthly averages. Then, for each subsequent calendar month, use Equation 10 below to calculate the 12-month rolling average as a weighted average of the Hg emission rate for the current month and the Hg emission rates for the previous 11 months, with one exception. Calendar months in which the unit does not operate (zero unit operating hours) shall not be included in the 12-month rolling average.
(3) If a sorbent trap monitoring system is used in lieu of a Hg CEMS, as described in § 75.15 of this chapter and in appendix K to part 75 of this chapter, calculate the monthly Hg emission rates using Equations 7 through 9 of this section, except that for a particular pair of sorbent traps, C
(i) Daily calibration drift (CD) tests and quarterly accuracy determinations shall be performed for Hg CEMS in accordance with Procedure 1 of appendix F to this part. For the CD assessments, you may use either elemental mercury or mercuric chloride (Hg° or HgCl
(a) For SO
(b) For SO
(1) Calendar date.
(2) The average SO
(3) Percent reduction of the potential combustion concentration of SO
(4) Identification of the boiler operating days for which pollutant or diluent data have not been obtained by an approved method for at least 75 percent of the hours of operation of the facility; justification for not obtaining sufficient data; and description of corrective actions taken.
(5) Identification of the times when emissions data have been excluded from the calculation of average emission rates because of startup, shutdown, malfunction (NO
(6) Identification of “F” factor used for calculations, method of determination, and type of fuel combusted.
(7) Identification of times when hourly averages have been obtained based on manual sampling methods.
(8) Identification of the times when the pollutant concentration exceeded full span of the CEMS.
(9) Description of any modifications to CEMS which could affect the ability of the CEMS to comply with Performance Specifications 2 or 3.
(c) If the minimum quantity of emission data as required by § 60.49Da is not obtained for any 30 successive boiler operating days, the following information obtained under the requirements of § 60.48Da(h) is reported to the Administrator for that 30-day period:
(1) The number of hourly averages available for outlet emission rates (n
(2) The standard deviation of hourly averages for outlet emission rates (s
(3) The lower confidence limit for the mean outlet emission rate (E
(4) The applicable potential combustion concentration.
(5) The ratio of the upper confidence limit for the mean outlet emission rate (E
(d) If any standards under § 60.43Da are exceeded during emergency conditions because of control system malfunction, the owner or operator of the affected facility shall submit a signed statement:
(1) Indicating if emergency conditions existed and requirements under § 60.48Da(d) were met during each period, and
(2) Listing the following information:
(i) Time periods the emergency condition existed;
(ii) Electrical output and demand on the owner or operator's electric utility system and the affected facility;
(iii) Amount of power purchased from interconnected neighboring utility companies during the emergency period;
(iv) Percent reduction in emissions achieved;
(v) Atmospheric emission rate (ng/J) of the pollutant discharged; and
(vi) Actions taken to correct control system malfunction.
(e) If fuel pretreatment credit toward the SO
(1) Indicating what percentage cleaning credit was taken for the calendar quarter, and whether the credit was determined in accordance with the provisions of § 60.50Da and Method 19 of appendix A of this part; and
(2) Listing the quantity, heat content, and date each pretreated fuel shipment was received during the previous quarter; the name and location of the fuel pretreatment facility; and the total quantity and total heat content of all fuels received at the affected facility during the previous quarter.
(f) For any periods for which opacity, SO
(g) For Hg, the following information shall be reported to the Administrator:
(1) Company name and address;
(2) Date of report and beginning and ending dates of the reporting period;
(3) The applicable Hg emission limit (lb/MWh); and
(4) For each month in the reporting period:
(i) The number of unit operating hours;
(ii) The number of unit operating hours with valid data for Hg concentration, stack gas flow rate, moisture (if required), and electrical output;
(iii) The monthly Hg emission rate (lb/MWh);
(iv) The number of hours of valid data excluded from the calculation of the monthly Hg emission rate, due to unit startup, shutdown and malfunction; and
(v) The 12-month rolling average Hg emission rate (lb/MWh); and
(5) The data assessment report (DAR) required by appendix F to this part, or an equivalent summary of QA test results if the QA of part 75 of this chapter are implemented.
(h) The owner or operator of the affected facility shall submit a signed statement indicating whether:
(1) The required CEMS calibration, span, and drift checks or other periodic audits have or have not been performed as specified.
(2) The data used to show compliance was or was not obtained in accordance with approved methods and procedures of this part and is representative of plant performance.
(3) The minimum data requirements have or have not been met; or, the minimum data requirements have not been met for errors that were unavoidable.
(4) Compliance with the standards has or has not been achieved during the reporting period.
(i) For the purposes of the reports required under § 60.7, periods of excess emissions are defined as all 6-minute periods during which the average opacity exceeds the applicable opacity standards under § 60.42Da(b). Opacity levels in excess of the applicable opacity standard and the date of such excesses are to be submitted to the Administrator each calendar quarter.
(j) The owner or operator of an affected facility shall submit the written reports required under this section and subpart A to the Administrator semiannually for each six-month period. All semiannual reports shall be postmarked by the 30th day following the end of each six-month period.
(k) The owner or operator of an affected facility may submit electronic quarterly reports for SO
The owner or operator of an affected facility subject to the emissions limitations in § 60.45Da shall provide notifications in accordance with § 60.7(a) and shall maintain records of all information needed to demonstrate compliance including performance tests, monitoring data, fuel analyses, and calculations, consistent with the requirements of § 60.7(f).
5. Subpart Db is revised to read as follows:
(a) The affected facility to which this subpart applies is each steam generating unit that commences construction, modification, or reconstruction after
(b) Any affected facility meeting the applicability requirements under paragraph (a) of this section and commencing construction, modification, or reconstruction after June 19, 1984, but on or before June 19, 1986, is subject to the following standards:
(1) Coal-fired affected facilities having a heat input capacity between 29 and 73 MW (100 and 250 MMBtu/hr), inclusive, are subject to the particulate matter (PM) and nitrogen oxides (NO
(2) Coal-fired affected facilities having a heat input capacity greater than 73 MW (250 MMBtu/hr) and meeting the applicability requirements under subpart D (Standards of performance for fossil-fuel-fired steam generators; § 60.40) are subject to the PM and NO
(3) Oil-fired affected facilities having a heat input capacity between 29 and 73 MW (100 and 250 MMBtu/hr), inclusive, are subject to the NO
(4) Oil-fired affected facilities having a heat input capacity greater than 73 MW (250 MMBtu/hr) and meeting the applicability requirements under subpart D (Standards of performance for fossil-fuel-fired steam generators; § 60.40) are also subject to the NO
(c) Affected facilities that also meet the applicability requirements under subpart J (Standards of performance for petroleum refineries; § 60.104) are subject to the PM and NO
(d) Affected facilities that also meet the applicability requirements under subpart E (Standards of performance for incinerators; § 60.50) are subject to the NO
(e) Steam generating units meeting the applicability requirements under subpart Da (Standards of performance for electric utility steam generating units; § 60.40Da) are not subject to this subpart.
(f) Any change to an existing steam generating unit for the sole purpose of combusting gases containing total reduced sulfur (TRS) as defined under § 60.281 is not considered a modification under § 60.14 and the steam generating unit is not subject to this subpart.
(g) In delegating implementation and enforcement authority to a State under section 111(c) of the Clean Air Act, the following authorities shall be retained by the Administrator and not transferred to a State.
(1) Section 60.44b(f).
(2) Section 60.44b(g).
(3) Section 60.49b(a)(4).
(h) Any affected facility that meets the applicability requirements and is subject to subpart Ea, subpart Eb, or subpart AAAA of this part is not covered by this subpart.
(i) Heat recovery steam generators that are associated with combined cycle gas turbines and that meet the applicability requirements of subpart GG or KKKK of this part are not subject to this subpart. This subpart will continue to apply to all other heat recovery steam generators that are capable of combusting more than 29 MW (100 MMBtu/hr) heat input of fossil fuel. If the heat recovery steam generator is subject to this subpart, only emissions resulting from combustion of fuels in the steam generating unit are subject to this subpart. (The gas turbine emissions are subject to subpart GG or KKKK, as applicable, of this part.)
(j) Any affected facility meeting the applicability requirements under paragraph (a) of this section and commencing construction, modification, or reconstruction after June 19, 1986 is not subject to subpart D (Standards of Performance for Fossil-Fuel-Fired Steam Generators, § 60.40).
(k) Any affected facility that meets the applicability requirements and is subject to an EPA approved State or Federal section 111(d)/129 plan implementing subpart Cb or subpart BBBB of this part is not covered by this subpart.
As used in this subpart, all terms not defined herein shall have the meaning given them in the Clean Air Act and in subpart A of this part.
Residual oil means crude oil, fuel oil numbers 1 and 2 that have a nitrogen content greater than 0.05 weight percent, and all fuel oil numbers 4, 5 and 6, as defined by the American Society of Testing and Materials in ASTM D396 (incorporated by reference, see § 60.17).
(a) Except as provided in paragraphs (b), (c), (d), or (k) of this section, on and after the date on which the performance test is completed or required to be completed under § 60.8, whichever comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005, that combusts coal or oil shall cause to be discharged into the atmosphere any gases that contain SO
Only the heat input supplied to the affected facility from the combustion of coal and oil is counted under this section. No credit is provided for the heat input to the affected facility from the combustion of natural gas, wood, municipal-type solid waste, or other fuels or heat derived from exhaust gases from other sources, such as gas turbines, internal combustion engines, kilns, etc.
(b) On and after the date on which the performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005, that combusts coal refuse alone in a fluidized bed combustion steam generating unit shall cause to be discharged into the atmosphere any gases that contain SO
(c) On and after the date on which the performance test is completed or is required to be completed under § 60.8, whichever comes first, no owner or operator of an affected facility that combusts coal or oil, either alone or in combination with any other fuel, and that uses an emerging technology for the control of SO
Only the heat input supplied to the affected facility from the combustion of coal and oil is counted under this section. No credit is provided for the heat input to the affected facility from the combustion of natural gas, wood, municipal-type solid waste, or other fuels, or from the heat input derived from exhaust gases from other sources, such as gas turbines, internal combustion engines, kilns, etc.
(d) On and after the date on which the performance test is completed or required to be completed under § 60.8, whichever comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005 and listed in paragraphs (d)(1), (2), (3), or (4) of this section shall cause to be discharged into the atmosphere any gases that contain SO
(1) Affected facilities that have an annual capacity factor for coal and oil of 30 percent (0.30) or less and are subject to a federally enforceable permit limiting the operation of the affected facility to an annual capacity factor for coal and oil of 30 percent (0.30) or less;
(2) Affected facilities located in a noncontinental area; or
(3) Affected facilities combusting coal or oil, alone or in combination with any fuel, in a duct burner as part of a combined cycle system where 30 percent (0.30) or less of the heat entering the steam generating unit is from combustion of coal and oil in the duct burner and 70 percent (0.70) or more of the heat entering the steam generating unit is from the exhaust gases entering the duct burner; or
(4) The affected facility burns coke oven gas alone or in combination with natural gas or very low sulfur distillate oil.
(e) Except as provided in paragraph (f) of this section, compliance with the emission limits, fuel oil sulfur limits, and/or percent reduction requirements under this section are determined on a 30-day rolling average basis.
(f) Except as provided in paragraph (j)(2) of this section, compliance with the emission limits or fuel oil sulfur limits under this section is determined on a 24-hour average basis for affected
(g) Except as provided in paragraph (i) of this section, the SO
(h) Reductions in the potential SO
(1) Fuel pretreatment results in a 50 percent or greater reduction in potential SO
(2) Emissions from the pretreated fuel (without combustion or post combustion SO
(i) An affected facility subject to paragraph (a), (b), or (c) of this section may combust very low sulfur oil or natural gas when the SO
(j) Percent reduction requirements are not applicable to affected facilities combusting only very low sulfur oil. The owner or operator of an affected facility combusting very low sulfur oil shall demonstrate that the oil meets the definition of very low sulfur oil by: (1) Following the performance testing procedures as described in § 60.45b(c) or § 60.45b(d), and following the monitoring procedures as described in § 60.47b(a) or § 60.47b(b) to determine SO
(k)(1) Except as provided in paragraphs (k)(2), (k)(3), and (k)(4) of this section, on and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commences construction, reconstruction, or modification after February 28, 2005, and that combusts coal, oil, natural gas, a mixture of these fuels, or a mixture of these fuels with any other fuels shall cause to be discharged into the atmosphere any gases that contain SO
(2) Units firing only very low sulfur oil and/or a mixture of gaseous fuels with a potential SO
(3) Units that are located in a noncontinental area and that combust coal or oil shall not discharge any gases that contain SO
(4) As an alternative to meeting the requirements under paragraph (k)(1) of this section, modified facilities that combust coal or a mixture of coal with other fuels shall not cause to be discharged into the atmosphere any gases that contain SO
(a) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005 that combusts coal or combusts mixtures of coal with other fuels, shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of the following emission limits:
(1) 22 ng/J (0.051 lb/MMBtu) heat input,
(i) If the affected facility combusts only coal, or
(ii) If the affected facility combusts coal and other fuels and has an annual capacity factor for the other fuels of 10 percent (0.10) or less.
(2) 43 ng/J (0.10 lb/MMBtu) heat input if the affected facility combusts coal and other fuels and has an annual capacity factor for the other fuels greater than 10 percent (0.10) and is subject to a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor greater than 10 percent (0.10) for fuels other than coal.
(3) 86 ng/J (0.20 lb/MMBtu) heat input if the affected facility combusts coal or coal and other fuels and
(i) Has an annual capacity factor for coal or coal and other fuels of 30 percent (0.30) or less,
(ii) Has a maximum heat input capacity of 73 MW (250 MMBtu/hr) or less,
(iii) Has a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor of 30 percent (0.30) or less for coal or coal and other solid fuels, and
(iv) Construction of the affected facility commenced after June 19, 1984, and before November 25, 1986.
(4) An affected facility burning coke oven gas alone or in combination with other fuels not subject to a PM standard under § 60.43b and not using a post combustion technology (except a wet scrubber) for reducing PM or SO
(b) On and after the date on which the performance test is completed or required to be completed under § 60.8, whichever comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005, and that combusts oil (or mixtures of oil with other fuels) and uses a conventional or emerging technology to reduce SO
(c) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005, and that combusts wood, or wood with other fuels, except coal, shall cause to be discharged from that affected facility any gases that contain PM in excess of the following emission limits:
(1) 43 ng/J (0.10 lb/MMBtu) heat input if the affected facility has an annual capacity factor greater than 30 percent (0.30) for wood.
(2) 86 ng/J (0.20 lb/MMBtu) heat input if
(i) The affected facility has an annual capacity factor of 30 percent (0.30) or less for wood;
(ii) Is subject to a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor of 30 percent (0.30) or less for wood; and
(iii) Has a maximum heat input capacity of 73 MW (250 MMBtu/hr) or less.
(d) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that combusts municipal-type solid waste or mixtures of municipal-type solid waste with other fuels, shall cause to be discharged into the atmosphere from that affected facility any gases that
(1) 43 ng/J (0.10 lb/MMBtu) heat input;
(i) If the affected facility combusts only municipal-type solid waste; or
(ii) If the affected facility combusts municipal-type solid waste and other fuels and has an annual capacity factor for the other fuels of 10 percent (0.10) or less.
(2) 86 ng/J (0.20 lb/MMBtu) heat input if the affected facility combusts municipal-type solid waste or municipal-type solid waste and other fuels; and
(i) Has an annual capacity factor for municipal-type solid waste and other fuels of 30 percent (0.30) or less;
(ii) Has a maximum heat input capacity of 73 MW (250 MMBtu/hr) or less;
(iii) Has a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor of 30 percent (0.30) or less for municipal-type solid waste, or municipal-type solid waste and other fuels; and
(iv) Construction of the affected facility commenced after June 19, 1984, but on or before November 25, 1986.
(e) For the purposes of this section, the annual capacity factor is determined by dividing the actual heat input to the steam generating unit during the calendar year from the combustion of coal, wood, or municipal-type solid waste, and other fuels, as applicable, by the potential heat input to the steam generating unit if the steam generating unit had been operated for 8,760 hours at the maximum heat input capacity.
(f) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that combusts coal, oil, wood, or mixtures of these fuels with any other fuels shall cause to be discharged into the atmosphere any gases that exhibit greater than 20 percent opacity (6-minute average), except for one 6-minute period per hour of not more than 27 percent opacity.
(g) The PM and opacity standards apply at all times, except during periods of startup, shutdown or malfunction. (h)(1) Except as provided in paragraphs (h)(2), (h)(3), (h)(4), and (h)(5) of this section, on and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification after February 28, 2005, and that combusts coal, oil, wood, a mixture of these fuels, or a mixture of these fuels with any other fuels shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of 13 ng/J (0.030 lb/MMBtu) heat input,
(2) As an alternative to meeting the requirements of paragraph (h)(1) of this section, the owner or operator of an affected facility for which modification commenced after February 28, 2005, may elect to meet the requirements of this paragraph. On and after the date on which the initial performance test is completed or required to be completed under § 60.8, no owner or operator of an affected facility that commences modification after February 28, 2005 shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of both:
(i) 22 ng/J (0.051 lb/MMBtu) heat input derived from the combustion of coal, oil, wood, a mixture of these fuels, or a mixture of these fuels with any other fuels; and
(ii) 0.2 percent of the combustion concentration (99.8 percent reduction) when combusting coal, oil, wood, a mixture of these fuels, or a mixture of these fuels with any other fuels.
(3) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commences modification after February 28, 2005, and that combusts over 30 percent wood (by heat input) on an annual basis and has a maximum heat input capacity of 73 MW (250 MMBtu/h) or less shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of 43 ng/J (0.10 lb/MMBtu) heat input.
(4) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commences modification after February 28, 2005, and that combusts over 30 percent wood (by heat input) on an annual basis and has a maximum heat input capacity greater than 73 MW (250 MMBtu/h) shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of 37 ng/J (0.085 lb/MMBtu) heat input.
(5) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commences construction, reconstruction, or modification after February 28, 2005, and that combusts only oil that contains no more than 0.3 weight percent sulfur, coke oven gas, a mixture of these fuels, or either fuel (or a mixture of these fuels) in combination with other fuels not subject to a PM standard under § 60.43b and not using a post combustion technology (except a wet scrubber) to reduce SO
(a) Except as provided under paragraphs (k) and (l) of this section, on and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that is subject to the provisions of this section and that combusts only coal, oil, or natural gas shall cause to be discharged into the atmosphere from that affected facility any gases that contain NO
(b) Except as provided under paragraphs (k) and (l) of this section, on and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that simultaneously combusts mixtures of coal, oil, or natural gas shall cause to be discharged into the atmosphere from that affected facility any gases that contain NO
(c) Except as provided under paragraph (l) of this section, on and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that simultaneously combusts coal or oil, or a mixture of these fuels with natural gas, and wood, municipal-type solid waste, or any other fuel shall cause to be discharged into the atmosphere any gases that contain NO
(d) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that simultaneously combusts natural gas with wood, municipal-type solid waste, or other solid fuel, except coal, shall cause to be discharged into the atmosphere from that affected facility any gases that contain NO
(e) Except as provided under paragraph (l) of this section, on and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that simultaneously combusts coal, oil, or natural gas with byproduct/waste shall cause to be discharged into the atmosphere any gases that contain NO
En = NO
(f) Any owner or operator of an affected facility that combusts byproduct/waste with either natural gas or oil may petition the Administrator within 180 days of the initial startup of the affected facility to establish a NO
(1) Any owner or operator of an affected facility petitioning for a facility-specific NO
(i) Demonstrate compliance with the emission limits for natural gas and distillate oil in paragraph (a)(1) of this section or for residual oil in paragraph (a)(2) or (l)(1) of this section, as appropriate, by conducting a 30-day performance test as provided in § 60.46b(e). During the performance test only natural gas, distillate oil, or
(ii) Demonstrate that the affected facility is unable to comply with the emission limits for natural gas and distillate oil in paragraph (a)(1) of this section or for residual oil in paragraph (a)(2) or (l)(1) of this section, as appropriate, when gaseous or liquid byproduct/waste is combusted in the affected facility under the same conditions and using the same technological system of emission reduction applied when demonstrating compliance under paragraph (f)(1)(i) of this section.
(2) The NO
(g) Any owner or operator of an affected facility that combusts hazardous waste (as defined by 40 CFR part 261 or 40 CFR part 761) with natural gas or oil may petition the Administrator within 180 days of the initial startup of the affected facility for a waiver from compliance with the NO
(h) For purposes of paragraph (i) of this section, the NO
(i) Except as provided under paragraph (j) of this section, compliance with the emission limits under this section is determined on a 30-day rolling average basis.
(j) Compliance with the emission limits under this section is determined on a 24-hour average basis for the initial performance test and on a 3-hour average basis for subsequent performance tests for any affected facilities that:
(1) Combust, alone or in combination, only natural gas, distillate oil, or residual oil with a nitrogen content of 0.30 weight percent or less;
(2) Have a combined annual capacity factor of 10 percent or less for natural gas, distillate oil, and residual oil with a nitrogen content of 0.30 weight percent or less; and
(3) Are subject to a federally enforceable requirement limiting operation of the affected facility to the firing of natural gas, distillate oil, and/or residual oil with a nitrogen content of 0.30 weight percent or less and limiting operation of the affected facility to a combined annual capacity factor of 10 percent or less for natural gas, distillate oil, and residual oil with a nitrogen content of 0.30 weight percent or less.
(k) Affected facilities that meet the criteria described in paragraphs (j)(1), (2), and (3) of this section, and that have a heat input capacity of 73 MW (250 MMBtu/hr) or less, are not subject to the NO
(l) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction or reconstruction after July 9, 1997 shall cause to be discharged into the atmosphere from that affected facility any gases that contain NO
(1) If the affected facility combusts coal, oil, or natural gas, or a mixture of these fuels, or with any other fuels: A limit of 86 ng/JI (0.20 lb/MMBtu) heat input unless the affected facility has an annual capacity factor for coal, oil, and natural gas of 10 percent (0.10) or less and is subject to a federally enforceable requirement that limits operation of the facility to an annual capacity factor of 10 percent (0.10) or less for coal, oil, and natural gas; or
(2) If the affected facility has a low heat release rate and combusts natural gas or distillate oil in excess of 30 percent of the heat input on a 30-day rolling average from the combustion of all fuels, a limit determined by use of the following formula:
(3) After February 27, 2006, units where more than 33 percent of total annual output is electrical or mechanical may comply with an optional limit of 270 ng/J (2.1 lb/MWh) gross energy output, based on a 30-day rolling average. Units complying with this output-based limit must demonstrate compliance according to the procedures of § 60.48Da(i) of subpart Da of this part, and must monitor emissions according to § 60.49Da(c), (k), through (n) of subpart Da of this part.
(a) The SO
(b) In conducting the performance tests required under § 60.8, the owner or operator shall use the methods and
(c) The owner or operator of an affected facility shall conduct performance tests to determine compliance with the percent of potential SO
(1) The initial performance test shall be conducted over 30 consecutive operating days of the steam generating unit. Compliance with the SO
(2) If only coal, only oil, or a mixture of coal and oil is combusted, the following procedures are used:
(i) The procedures in Method 19 of appendix A of this part are used to determine the hourly SO
(ii) The percent of potential SO
(3) If coal or oil is combusted with other fuels, the same procedures required in paragraph (c)(2) of this section are used, except as provided in the following:
(i) An adjusted hourly SO
(ii) To compute the percent of potential SO
To compute E
(4) The owner or operator of an affected facility subject to paragraph (b)(3) of this section does not have to measure parameters E
(i) Determine %P
(ii) Sulfur dioxide emissions (E
(5) The owner or operator of an affected facility that qualifies under the provisions of § 60.42b(d) does not have to measure parameters E
(d) Except as provided in paragraph (j) of this section, the owner or operator of an affected facility that combusts only very low sulfur oil, has an annual capacity factor for oil of 10 percent (0.10) or less, and is subject to a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor for oil of 10 percent (0.10) or less shall:
(1) Conduct the initial performance test over 24 consecutive steam generating unit operating hours at full load;
(2) Determine compliance with the standards after the initial performance test based on the arithmetic average of the hourly emissions data during each steam generating unit operating day if a CEMS is used, or based on a daily average if Method 6B of appendix A of this part or fuel sampling and analysis procedures under Method 19 of appendix A of this part are used.
(e) The owner or operator of an affected facility subject to § 60.42b(d)(1) shall demonstrate the maximum design capacity of the steam generating unit by operating the facility at maximum capacity for 24 hours. This demonstration will be made during the initial performance test and a subsequent demonstration may be requested at any other time. If the 24-hour average firing rate for the affected facility is less than the maximum design capacity provided by the manufacturer of the affected facility, the 24-hour average firing rate shall be used to determine the capacity utilization rate for the affected facility, otherwise the maximum design capacity provided by the manufacturer is used.
(f) For the initial performance test required under § 60.8, compliance with the SO
(g) After the initial performance test required under § 60.8, compliance with the SO
(h) Except as provided under paragraph (i) of this section, the owner or operator of an affected facility shall use all valid SO
(i) During periods of malfunction or maintenance of the SO
(j) The owner or operator of an affected facility that combusts very low sulfur oil is not subject to the compliance and performance testing requirements of this section if the owner or operator obtains fuel receipts as described in § 60.49b(r).
(k) The owner or operator of an affected facility seeking to demonstrate compliance under §§ 60.42b(d)(4), 60.42b(j), and 60.42b(k)(2) shall follow the applicable procedures under § 60.49b(r).
(a) The PM emission standards and opacity limits under § 60.43b apply at all times except during periods of startup, shutdown, or malfunction. The NO
(b) Compliance with the PM emission standards under § 60.43b shall be determined through performance testing as described in paragraph (d) of this section, except as provided in paragraph (i) of this section.
(c) Compliance with the NO
(d) To determine compliance with the PM emission limits and opacity limits under § 60.43b, the owner or operator of an affected facility shall conduct an initial performance test as required under § 60.8, and shall conduct subsequent performance tests as requested by the Administrator, using the following procedures and reference methods:
(1) Method 3B of appendix A of this part is used for gas analysis when applying Method 5 or 17 of appendix A of this part.
(2) Method 5, 5B, or 17 of appendix A of this part shall be used to measure the concentration of PM as follows:
(i) Method 5 of appendix A of this part shall be used at affected facilities without wet flue gas desulfurization (FGD) systems; and
(ii) Method 17 of appendix A of this part may be used at facilities with or without wet scrubber systems provided the stack gas temperature does not exceed a temperature of 160 °C (32 °F). The procedures of sections 2.1 and 2.3 of Method 5B of appendix A of this part may be used in Method 17 of appendix A of this part only if it is used after a wet FGD system. Do not use Method 17 of appendix A of this part after wet FGD systems if the effluent is saturated or laden with water droplets.
(iii) Method 5B of appendix A of this part is to be used only after wet FGD systems.
(3) Method 1 of appendix A of this part is used to select the sampling site and the number of traverse sampling points. The sampling time for each run is at least 120 minutes and the minimum sampling volume is 1.7 dscm (60 dscf) except that smaller sampling times or volumes may be approved by the Administrator when necessitated by process variables or other factors.
(4) For Method 5 of appendix A of this part, the temperature of the sample gas in the probe and filter holder is monitored and is maintained at 160±14 °C (320±25 °F).
(5) For determination of PM emissions, the oxygen (O
(6) For each run using Method 5, 5B, or 17 of appendix A of this part, the emission rate expressed in ng/J heat input is determined using:
(i) The O
(ii) The dry basis F factor; and
(iii) The dry basis emission rate calculation procedure contained in Method 19 of appendix A of this part.
(7) Method 9 of appendix A of this part is used for determining the opacity of stack emissions.
(e) To determine compliance with the emission limits for NO
(1) For the initial compliance test, NO
(2) Following the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, the owner or operator of an affected facility which combusts coal or which combusts residual oil having a nitrogen content greater than 0.30 weight percent shall determine compliance with the NO
(3) Following the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, the owner or operator of an affected facility that has a heat input capacity greater than 73 MW (250 MMBtu/hr) and that combusts natural gas, distillate oil, or residual oil having a nitrogen content of 0.30 weight percent or less shall determine compliance with the NO
(4) Following the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, the owner or operator of an affected facility that has a heat input capacity of 73 MW (250 MMBtu/hr) or less and that combusts natural gas, distillate oil, or residual oil having a nitrogen content of 0.30 weight percent or less shall upon request determine compliance with the NO
(5) If the owner or operator of an affected facility that combusts residual oil does not sample and analyze the residual oil for nitrogen content, as specified in § 60.49b(e), the requirements of § 60.48b(g)(1) apply and the provisions of § 60.48b(g)(2) are inapplicable.
(f) To determine compliance with the emissions limits for NO
(1) The owner or operator of an affected facility shall conduct the performance test required under § 60.8 as follows:
(i) The emissions rate (E) of NO
(ii) Method 7E of appendix A of this part shall be used to determine the NO
(iii) The owner or operator shall identify and demonstrate to the Administrator's satisfaction suitable methods to determine the average hourly heat input rate to the combustion turbine and the average hourly heat input rate to the affected duct burner.
(iv) Compliance with the emissions limits under § 60.44b (a)(4) or § 60.44b(l) is determined by the three-run average (nominal 1-hour runs) for the initial and subsequent performance tests; or
(2) The owner or operator of an affected facility may elect to determine compliance on a 30-day rolling average basis by using the CEMS specified under § 60.48b for measuring NO
(g) The owner or operator of an affected facility described in § 60.44b(j) or § 60.44b(k) shall demonstrate the maximum heat input capacity of the steam generating unit by operating the facility at maximum capacity for 24 hours. The owner or operator of an affected facility shall determine the maximum heat input capacity using the heat loss method described in sections 5 and 7.3 of the ASME
(h) The owner or operator of an affected facility described in § 60.44b(j) that has a heat input capacity greater than 73 MW (250 MMBtu/hr) shall:
(1) Conduct an initial performance test as required under § 60.8 over a minimum of 24 consecutive steam generating unit operating hours at maximum heat input capacity to demonstrate compliance with the NO
(2) Conduct subsequent performance tests once per calendar year or every 400 hours of operation (whichever comes first) to demonstrate compliance with the NO
(i) The owner or operator of an affected facility seeking to demonstrate compliance under paragraph § 60.43b(h)(5) shall follow the applicable procedures under § 60.49b(r).
(j) In place of PM testing with EPA Reference Method 5, 5B, or 17 of appendix A of this part, an owner or operator may elect to install, calibrate, maintain, and operate a CEMS for monitoring PM emissions discharged to the atmosphere and record the output of the system. The owner or operator of an affected facility who elects to continuously monitor PM emissions instead of conducting performance testing using EPA Method 5, 5B, or 17 of appendix A of this part shall comply with the requirements specified in paragraphs (j)(1) through (j)(13) of this section.
(1) Notify the Administrator one month before starting use of the system.
(2) Notify the Administrator one month before stopping use of the system.
(3) The monitor shall be installed, evaluated, and operated in accordance with § 60.13 of subpart A of this part.
(4) The initial performance evaluation shall be completed no later than 180 days after the date of initial startup of the affected facility, as specified under § 60.8 of subpart A of this part or within 180 days of notification to the Administrator of use of the CEMS if the owner or operator was previously determining compliance by Method 5, 5B, or 17 of appendix A of this part performance tests, whichever is later.
(5) The owner or operator of an affected facility shall conduct an initial performance test for PM emissions as required under § 60.8 of subpart A of this part. Compliance with the PM emission limit shall be determined by
(6) Compliance with the PM emission limit shall be determined based on the 24-hour daily (block) average of the hourly arithmetic average emission concentrations using CEMS outlet data.
(7) At a minimum, valid CEMS hourly averages shall be obtained as specified in paragraphs (j)(7)(i) of this section for 75 percent of the total operating hours per 30-day rolling average.
(i) At least two data points per hour shall be used to calculate each 1-hour arithmetic average.
(8) The 1-hour arithmetic averages required under paragraph (j)(7) of this section shall be expressed in ng/J or lb/MMBtu heat input and shall be used to calculate the boiler operating day daily arithmetic average emission concentrations. The 1-hour arithmetic averages shall be calculated using the data points required under § 60.13(e)(2) of subpart A of this part.
(9) All valid CEMS data shall be used in calculating average emission concentrations even if the minimum CEMS data requirements of paragraph (j)(7) of this section are not met.
(10) The CEMS shall be operated according to Performance Specification 11 in appendix B of this part.
(11) During the correlation testing runs of the CEMS required by Performance Specification 11 in appendix B of this part, PM and O
(i) For PM, EPA Reference Method 5, 5B, or 17 of appendix A of this part shall be used.
(ii) For O
(12) Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with procedure 2 in appendix F of this part. Relative Response Audits must be performed annually and Response Correlation Audits must be performed every 3 years.
(13) When PM emissions data are not obtained because of CEMS breakdowns, repairs, calibration checks, and zero and span adjustments, emissions data shall be obtained by using other monitoring systems as approved by the Administrator or EPA Reference Method 19 of appendix A of this part to provide, as necessary, valid emissions data for a minimum of 75 percent of total operating hours per 30-day rolling average.
(a) Except as provided in paragraphs (b) and (g) of this section, the owner or operator of an affected facility subject to the SO
(b) As an alternative to operating CEMS as required under paragraph (a) of this section, an owner or operator may elect to determine the average SO
(1) Collecting coal or oil samples in an as-fired condition at the inlet to the steam generating unit and analyzing them for sulfur and heat content according to Method 19 of appendix A of this part. Method 19 of appendix A of this part provides procedures for converting these measurements into the format to be used in calculating the average SO
(2) Measuring SO
(3) A daily SO
(4) The mean 30-day emission rate is calculated using the daily measured values in ng/J (lb/MMBtu) for 30 successive steam generating unit operating days using equation 19-20 of Method 19 of appendix A of this part.
(c) The owner or operator of an affected facility shall obtain emission data for at least 75 percent of the operating hours in at least 22 out of 30 successive boiler operating days. If this minimum data requirement is not met with a single monitoring system, the owner or operator of the affected facility shall supplement the emission data with data collected with other monitoring systems as approved by the Administrator or the reference methods and procedures as described in paragraph (b) of this section.
(d) The 1-hour average SO
(e) The procedures under § 60.13 shall be followed for installation, evaluation, and operation of the CEMS.
(1) All CEMS shall be operated in accordance with the applicable procedures under Performance Specifications 1, 2, and 3 of appendix B of this part.
(2) Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with Procedure 1 of appendix F of this part.
(3) For affected facilities combusting coal or oil, alone or in combination with other fuels, the span value of the SO
(f) The owner or operator of an affected facility that combusts very low sulfur oil or is demonstrating compliance under § 60.45b(k) is not
(a) Except as provided in paragraph (j) of this section, the owner or operator of an affected facility subject to the opacity standard under § 60.43b shall install, calibrate, maintain, and operate a CEMS for measuring the opacity of emissions discharged to the atmosphere and record the output of the system.
(b) Except as provided under paragraphs (g), (h), and (i) of this section, the owner or operator of an affected facility subject to a NO
(1) Install, calibrate, maintain, and operate a CEMS, and record the output of the system, for measuring NO
(2) If the owner or operator has installed a NO
(c) The CEMS required under paragraph (b) of this section shall be operated and data recorded during all periods of operation of the affected facility except for CEMS breakdowns and repairs. Data is recorded during calibration checks, and zero and span adjustments.
(d) The 1-hour average NO
(e) The procedures under § 60.13 shall be followed for installation, evaluation, and operation of the continuous monitoring systems.
(1) For affected facilities combusting coal, wood or municipal-type solid waste, the span value for a continuous monitoring system for measuring opacity shall be between 60 and 80 percent.
(2) For affected facilities combusting coal, oil, or natural gas, the span value for NO
(3) All span values computed under paragraph (e)(2) of this section for combusting mixtures of regulated fuels are rounded to the nearest 500 ppm.
(f) When NO
(g) The owner or operator of an affected facility that has a heat input capacity of 73 MW (250 MMBtu/hr) or less, and that has an annual capacity factor for residual oil having a nitrogen content of 0.30 weight percent or less, natural gas, distillate oil, or any mixture of these fuels, greater than 10 percent (0.10) shall:
(1) Comply with the provisions of paragraphs (b), (c), (d), (e)(2), (e)(3), and (f) of this section; or
(2) Monitor steam generating unit operating conditions and predict NO
(h) The owner or operator of a duct burner, as described in § 60.41b, that is subject to the NO
(i) The owner or operator of an affected facility described in § 60.44b(j) or § 60.44b(k) is not required to install or operate a CEMS for measuring NO
(j) Units are not required to operate COMS for measuring opacity if:
(1) The affected facility uses a PM CEMS to monitor PM emissions; or
(2) The affected facility burns only liquid (excluding residual oil) or gaseous fuels with potential SO
(3) The affected facility burns coke oven gas alone or in combination with fuels meeting the criteria in paragraph (j)(2) of this section and does not use a post combustion technology to reduce SO
(k) Owners or operators complying with the PM emission limit by using a PM CEMS monitor instead of monitoring opacity must calibrate, maintain, and operate a CEMS, and record the output of the system, for PM emissions discharged to the atmosphere as specified in § 60.46b(j). The CEMS specified in paragraph § 60.46b(j) shall be operated and data recorded during all periods of operation of the affected facility except for CEMS breakdowns and repairs. Data is recorded during calibration checks, and zero and span adjustments.
(a) The owner or operator of each affected facility shall submit notification of the date of initial startup, as provided by § 60.7. This notification shall include:
(1) The design heat input capacity of the affected facility and identification of the fuels to be combusted in the affected facility;
(2) If applicable, a copy of any federally enforceable requirement that limits the annual capacity factor for any fuel or mixture of fuels under §§ 60.42b(d)(1), 60.43b(a)(2), (a)(3)(iii), (c)(2)(ii), (d)(2)(iii), 60.44b(c), (d), (e), (i), (j), (k), 60.45b(d), (g), 60.46b(h), or 60.48b(i);
(3) The annual capacity factor at which the owner or operator anticipates operating the facility based on all fuels fired and based on each individual fuel fired; and
(4) Notification that an emerging technology will be used for controlling emissions of SO
(b) The owner or operator of each affected facility subject to the SO
(c) The owner or operator of each affected facility subject to the NO
(1) Identify the specific operating conditions to be monitored and the relationship between these operating conditions and NO
(2) Include the data and information that the owner or operator used to identify the relationship between NO
(3) Identify how these operating conditions, including steam generating unit load, will be monitored under § 60.48b(g) on an hourly basis by the owner or operator during the period of operation of the affected facility; the quality assurance procedures or practices that will be employed to ensure that the data generated by monitoring these operating conditions will be representative and accurate; and the type and format of the records of these operating conditions, including steam generating unit load, that will be maintained by the owner or operator under § 60.49b(j).
(d) The owner or operator of an affected facility shall record and maintain records of the amounts of each fuel combusted during each day and calculate the annual capacity factor individually for coal, distillate oil, residual oil, natural gas, wood, and municipal-type solid waste for the reporting period. The annual capacity factor is determined on a 12-month rolling average basis with a new annual capacity factor calculated at the end of each calendar month.
(e) For an affected facility that combusts residual oil and meets the criteria under §§ 60.46b(e)(4), 60.44b (j), or (k), the owner or operator shall maintain records of the nitrogen content of the residual oil combusted in the affected facility and calculate the average fuel nitrogen content for the reporting period. The nitrogen content shall be determined using ASTM Method D4629 (incorporated by reference, see § 60.17), or fuel suppliers. If residual oil blends are being combusted, fuel nitrogen specifications may be prorated based on the ratio of residual oils of different nitrogen content in the fuel blend.
(f) For facilities subject to the opacity standard under § 60.43b, the owner or operator shall maintain records of opacity.
(g) Except as provided under paragraph (p) of this section, the owner or operator of an affected facility subject to the NO
(1) Calendar date;
(2) The average hourly NO
(3) The 30-day average NO
(4) Identification of the steam generating unit operating days when the calculated 30-day average NO
(5) Identification of the steam generating unit operating days for which pollutant data have not been obtained, including reasons for not obtaining sufficient data and a description of corrective actions taken;
(6) Identification of the times when emission data have been excluded from the calculation of average emission rates and the reasons for excluding data;
(7) Identification of “F” factor used for calculations, method of determination, and type of fuel combusted;
(8) Identification of the times when the pollutant concentration exceeded full span of the CEMS;
(9) Description of any modifications to the CEMS that could affect the ability of the CEMS to comply with Performance Specification 2 or 3; and
(10) Results of daily CEMS drift tests and quarterly accuracy assessments as required under appendix F, Procedure 1 of this part.
(h) The owner or operator of any affected facility in any category listed in paragraphs (h) (1) or (2) of this section is required to submit excess emission reports for any excess emissions that occurred during the reporting period.
(1) Any affected facility subject to the opacity standards under § 60.43b(e) or to the operating parameter monitoring requirements under § 60.13(i)(1).
(2) Any affected facility that is subject to the NO
(i) Combusts natural gas, distillate oil, or residual oil with a nitrogen content of 0.3 weight percent or less; or
(ii) Has a heat input capacity of 73 MW (250 MMBtu/hr) or less and is required to monitor NO
(3) For the purpose of § 60.43b, excess emissions are defined as all 6-minute periods during which the average opacity exceeds the opacity standards under § 60.43b(f).
(4) For purposes of § 60.48b(g)(1), excess emissions are defined as any calculated 30-day rolling average NO
(i) The owner or operator of any affected facility subject to the continuous monitoring requirements for NO
(j) The owner or operator of any affected facility subject to the SO
(k) For each affected facility subject to the compliance and performance testing requirements of § 60.45b and the reporting requirement in paragraph (j) of this section, the following information shall be reported to the Administrator:
(1) Calendar dates covered in the reporting period;
(2) Each 30-day average SO
(3) Each 30-day average percent reduction in SO
(4) Identification of the steam generating unit operating days that coal or oil was combusted and for which SO
(5) Identification of the times when emissions data have been excluded from the calculation of average emission rates; justification for excluding data; and description of corrective action taken if data have been excluded for periods other than those during which coal or oil were not combusted in the steam generating unit;
(6) Identification of “F” factor used for calculations, method of determination, and type of fuel combusted;
(7) Identification of times when hourly averages have been obtained based on manual sampling methods;
(8) Identification of the times when the pollutant concentration exceeded full span of the CEMS;
(9) Description of any modifications to the CEMS that could affect the ability of the CEMS to comply with Performance Specification 2 or 3;
(10) Results of daily CEMS drift tests and quarterly accuracy assessments as required under appendix F, Procedure 1 of this part; and
(11) The annual capacity factor of each fired as provided under paragraph (d) of this section.
(l) For each affected facility subject to the compliance and performance testing requirements of § 60.45b(d) and the reporting requirements of paragraph (j) of this section, the following information shall be reported to the Administrator:
(1) Calendar dates when the facility was in operation during the reporting period;
(2) The 24-hour average SO
(3) Identification of the steam generating unit operating days that coal or oil was combusted for which SO
(4) Identification of the times when emissions data have been excluded from the calculation of average emission rates; justification for excluding data; and description of corrective action taken if data have been excluded for periods other than those during which coal or oil were not combusted in the steam generating unit;
(5) Identification of “F” factor used for calculations, method of determination, and type of fuel combusted;
(6) Identification of times when hourly averages have been obtained based on manual sampling methods;
(7) Identification of the times when the pollutant concentration exceeded full span of the CEMS;
(8) Description of any modifications to the CEMS that could affect the ability of the CEMS to comply with Performance Specification 2 or 3; and
(9) Results of daily CEMS drift tests and quarterly accuracy assessments as required under appendix F, Procedure 1 of this part.
(m) For each affected facility subject to the SO
(1) The number of hourly averages available for outlet emission rates and inlet emission rates;
(2) The standard deviation of hourly averages for outlet emission rates and inlet emission rates, as determined in Method 19 of appendix A of this part, section 7;
(3) The lower confidence limit for the mean outlet emission rate and the upper confidence limit for the mean inlet emission rate, as calculated in Method 19 of appendix A of this part, section 7; and
(4) The ratio of the lower confidence limit for the mean outlet emission rate and the allowable emission rate, as determined in Method 19 of appendix A of this part, section 7.
(n) If a percent removal efficiency by fuel pretreatment (i.e., %R
(1) Indicating what removal efficiency by fuel pretreatment (i.e., %R
(2) Listing the quantity, heat content, and date each pre-treated fuel shipment was received during the reporting period, the name and location of the fuel pretreatment facility; and the total quantity and total heat content of all fuels received at the affected facility during the reporting period;
(3) Documenting the transport of the fuel from the fuel pretreatment facility to the steam generating unit; and
(4) Including a signed statement from the owner or operator of the fuel pretreatment facility certifying that the percent removal efficiency achieved by fuel pretreatment was determined in accordance with the provisions of Method 19 of appendix A of this part and listing the heat content and sulfur content of each fuel before and after fuel pretreatment.
(o) All records required under this section shall be maintained by the owner or operator of the affected facility for a period of 2 years following the date of such record.
(p) The owner or operator of an affected facility described in § 60.44b(j) or (k) shall maintain records of the following information for each steam generating unit operating day:
(1) Calendar date;
(2) The number of hours of operation; and
(3) A record of the hourly steam load.
(q) The owner or operator of an affected facility described in § 60.44b(j) or § 60.44b(k) shall submit to the Administrator a report containing:
(1) The annual capacity factor over the previous 12 months;
(2) The average fuel nitrogen content during the reporting period, if residual oil was fired; and
(3) If the affected facility meets the criteria described in § 60.44b(j), the results of any NO
(r) The owner or operator of an affected facility who elects to use the fuel based compliance alternatives in § 60.42b or § 60.43b shall either:
(1) The owner or operator of an affected facility who elects to demonstrate that the affected facility combusts only very low sulfur oil under § 60.42b(j)(2) or § 60.42b(k)(2) shall obtain and maintain at the affected facility fuel receipts from the fuel supplier that certify that the oil meets the definition of distillate oil as defined in § 60.41b and the applicable sulfur limit. For the purposes of this section, the distillate oil need not meet the fuel nitrogen content specification in the definition of distillate oil. Reports shall be submitted to the Administrator certifying that only very low sulfur oil meeting this definition and/or pipeline quality natural gas was combusted in the affected facility during the reporting period; or
(2) The owner or operator of an affected facility who elects to demonstrate compliance based on fuel analysis in § 60.42b or § 60.43b shall develop and submit a site-specific fuel analysis plan to the Administrator for review and approval no later than 60 days before the date you intend to demonstrate compliance. Each fuel analysis plan shall include a minimum initial requirement of weekly testing and each analysis report shall contain, at a minimum, the following information:
(i) The potential sulfur emissions rate of the representative fuel mixture in ng/J heat input;
(ii) The method used to determine the potential sulfur emissions rate of each constituent of the mixture. For distillate oil and natural gas a fuel receipt or tariff sheet is acceptable;
(iii) The ratio of different fuels in the mixture; and
(iv) The owner or operator can petition the Administrator to approve monthly or quarterly sampling in place of weekly sampling.
(s) Facility specific NO
(1)
(2)
(ii) When natural gas and chemical by-product waste are simultaneously combusted, the NO
(3)
(ii) The NO
(iii) The monitoring of the NO
(4)
(ii) The owner or operator of the C.AOG incinerator shall keep records of the monitoring required by paragraph (a)(3) of this section for a period of 2 years following the date of such record.
(iii) The owner of operator of the C.AOG incinerator shall perform all the applicable reporting and recordkeeping requirements of this section.
(t) Facility-specific NO
(1)
(2)
(ii) When fossil fuel and chemical by-product waste are simultaneously combusted, the NO
(3)
(ii) The NO
(iii) The monitoring of the NO
(4)
(ii) The owner or operator of Boiler No. 100 shall keep records of the monitoring required by paragraph (b)(3) of this section for a period of 2 years following the date of such record.
(iii) The owner of operator of Boiler No. 100 shall perform all the applicable reporting and recordkeeping requirements of § 60.49b.
(u)
(i) The site shall equip the natural gas-fired boilers with low NO
(ii) The site shall install, calibrate, maintain, and operate a continuous monitoring and recording system for measuring NO
(iii) Within 180 days of the completion of the powerhouse conversion, as required by 40 CFR 52.2454, the site shall perform a performance test to quantify criteria pollutant emissions.
(2) [Reserved]
(v) The owner or operator of an affected facility may submit electronic quarterly reports for SO
(w) The reporting period for the reports required under this subpart is each 6 month period. All reports shall be submitted to the Administrator and shall be postmarked by the 30th day following the end of the reporting period.
(x) Facility-specific NO
(1)
(ii) When fossil fuel and chemical by-product waste are simultaneously combusted, the NO
(2)
(ii) The monitoring of the NO
(3)
(ii) The owner or operator of the No. 2 Power Boiler shall keep records of the monitoring required by paragraph (x)(3) of this section for a period of 2 years following the date of such record.
(iii) The owner or operator of the No. 2 Power Boiler shall perform all the applicable reporting and recordkeeping requirements of § 60.49b.
(y) Facility-specific NO
(1)
(ii) When fossil fuel and chemical byproduct/waste are simultaneously combusted, the NO
(2)
(ii) The monitoring of the NO
(3)
(ii) The owner or operator of the AOGI shall keep records of the monitoring required by paragraph (y)(3) of this section for a period of 2 years following the date of such record.
(iii) The owner or operator of the AOGI shall perform all the applicable reporting and recordkeeping requirements of this section.
6. Subpart Dc is revised to read as follows:
(a) Except as provided in paragraph (d) of this section, the affected facility to which this subpart applies is each steam generating unit for which construction, modification, or reconstruction is commenced after June 9, 1989 and that has a maximum design heat input capacity of 29 megawatts (MW) (100 million British thermal units per hour (MMBtu/hr)) or less, but greater than or equal to 2.9 MW (10 MMBtu/hr).
(b) In delegating implementation and enforcement authority to a State under section 111(c) of the Clean Air Act, § 60.48c(a)(4) shall be retained by the Administrator and not transferred to a State.
(c) Steam generating units that meet the applicability requirements in paragraph (a) of this section are not subject to the sulfur dioxide (SO
(d) Any temporary change to an existing steam generating unit for the purpose of conducting combustion research is not considered a modification under § 60.14.
(e) Heat recovery steam generators that are associated with combined cycle gas turbines and meet the applicability requirements of subpart GG or KKKK of this part are not subject to this subpart. This subpart will continue to apply to all other heat recovery steam generators that are capable of combusting more than or equal to 2.9 MW (10 MMBtu/hr) heat input of fossil fuel but less than or equal to 29 MW (100 MMBtu/hr) heat input of fossil fuel. If the heat recovery steam generator is subject to this subpart, only emissions resulting from combustion of fuels in the steam generating unit are subject to this subpart. (The gas turbine emissions are subject to subpart GG or KKKK, as applicable, of this part).
(f) Any facility covered by subpart AAAA of this part is not covered by this subpart.
(g) Any facility covered by an EPA approved State or Federal section 111(d)/129 plan implementing subpart BBBB of this part is not covered by this subpart.
As used in this subpart, all terms not defined herein shall have the meaning given them in the Clean Air Act and in subpart A of this part.
(a) Except as provided in paragraphs (b), (c), and (e) of this section, on and after the date on which the performance test is completed or required to be completed under § 60.8, whichever date comes first, the owner or operator of an affected facility that combusts only coal shall neither: Cause to be discharged into the atmosphere from the affected facility any gases that contain SO
(b) Except as provided in paragraphs (c) and (e) of this section, on and after the date on which the performance test is completed or required to be completed under § 60.8, whichever date comes first, the owner or operator of an affected facility that:
(1) Combusts only coal refuse alone in a fluidized bed combustion steam generating unit shall neither:
(i) Cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(ii) Cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(2) Combusts only coal and that uses an emerging technology for the control of SO
(i) Cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(ii) Cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(c) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that combusts coal, alone or in combination with any other fuel, and is listed in paragraphs (c)(1), (2), (3), or (4) of this section shall cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(1) Affected facilities that have a heat input capacity of 22 MW (75 MMBtu/hr) or less.
(2) Affected facilities that have an annual capacity for coal of 55 percent (0.55) or less and are subject to a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor for coal of 55 percent (0.55) or less.
(3) Affected facilities located in a noncontinental area.
(4) Affected facilities that combust coal in a duct burner as part of a combined cycle system where 30 percent (0.30) or less of the heat entering the steam generating unit is from combustion of coal in the duct burner and 70 percent (0.70) or more of the heat entering the steam generating unit is from exhaust gases entering the duct burner.
(d) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that combusts oil shall cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(e) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that combusts coal, oil, or coal and oil with any other fuel shall cause to be discharged into the atmosphere from that affected facility any gases that contain SO
(1) The percent of potential SO
(i) Combusts coal in combination with any other fuel;
(ii) Has a heat input capacity greater than 22 MW (75 MMBtu/hr); and
(iii) Has an annual capacity factor for coal greater than 55 percent (0.55); and
(2) The emission limit determined according to the following formula for any affected facility that combusts coal, oil, or coal and oil with any other fuel:
(f) Reduction in the potential SO
(1) Fuel pretreatment results in a 50 percent (0.50) or greater reduction in the potential SO
(2) Emissions from the pretreated fuel (without either combustion or post-combustion SO
(g) Except as provided in paragraph (h) of this section, compliance with the percent reduction requirements, fuel oil sulfur limits, and emission limits of this section shall be determined on a 30-day rolling average basis.
(h) For affected facilities listed under paragraphs (h)(1), (2), or (3) of this section, compliance with the emission limits or fuel oil sulfur limits under this section may be determined based on a certification from the fuel supplier, as described under § 60.48c(f), as applicable.
(1) Distillate oil-fired affected facilities with heat input capacities between 2.9 and 29 MW (10 and 100 MMBtu/hr).
(2) Residual oil-fired affected facilities with heat input capacities between 2.9 and 8.7 MW (10 and 30 MMBtu/hr).
(3) Coal-fired facilities with heat input capacities between 2.9 and 8.7 MW (10 and 30 MMBtu/hr).
(i) The SO
(j) Only the heat input supplied to the affected facility from the combustion of coal and oil is counted under this section. No credit is provided for the heat input to the affected facility from wood or other fuels or for heat derived from exhaust gases from other sources, such as stationary gas turbines, internal combustion engines, and kilns.
(a) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005, that combusts coal or combusts mixtures of coal with other fuels and has a heat input capacity of 8.7 MW (30 MMBtu/hr) or greater, shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of the following emission limits:
(1) 22 ng/J (0.051 lb/MMBtu) heat input if the affected facility combusts only coal, or combusts coal with other fuels and has an annual capacity factor for the other fuels of 10 percent (0.10) or less.
(2) 43 ng/J (0.10 lb/MMBtu) heat input if the affected facility combusts coal with other fuels, has an annual capacity factor for the other fuels greater than 10 percent (0.10), and is subject to a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor greater than 10 percent (0.10) for fuels other than coal.
(b) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commenced construction, reconstruction, or modification on or before February 28, 2005, that combusts wood or combusts mixtures of wood with other fuels (except coal) and has a heat input capacity of 8.7 MW (30 MMBtu/hr) or greater, shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of the following emissions limits:
(1) 43 ng/J (0.10 lb/MMBtu) heat input if the affected facility has an annual capacity factor for wood greater than 30 percent (0.30); or
(2) 130 ng/J (0.30 lb/MMBtu) heat input if the affected facility has an annual capacity factor for wood of 30 percent (0.30) or less and is subject to a federally enforceable requirement limiting operation of the affected facility to an annual capacity factor for wood of 30 percent (0.30) or less.
(c) On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that combusts coal, wood, or oil and has a heat input capacity of 8.7 MW (30 MMBtu/hr) or greater shall cause to be discharged into the atmosphere from that affected facility any gases that exhibit greater than 20 percent opacity (6-minute average), except for one 6-minute period per hour of not more than 27 percent opacity.
(d) The PM and opacity standards under this section apply at all times, except during periods of startup, shutdown, or malfunction.
(e)(1) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commences construction, reconstruction, or modification after February 28, 2005, and that combusts coal, oil, wood, a mixture of these fuels, or a mixture of these fuels with any other fuels and has a heat input capacity of 8.7 MW (30 MMBtu/hr) or greater shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of 13 ng/J (0.030 lb/MMBtu) heat input, except as provided in paragraphs (e)(2), (e)(3), and (e)(4) of this section.
(2) As an alternative to meeting the requirements of paragraph (e)(1) of this section, the owner or operator of an affected facility for which modification commenced after February 28, 2005, may elect to meet the requirements of this paragraph. On and after the date on which the initial performance test is completed or required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commences modification after February 28, 2005 shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of both:
(i) 22 ng/J (0.051 lb/MMBtu) heat input derived from the combustion of coal, oil, wood, a mixture of these fuels, or a mixture of these fuels with any other fuels; and
(ii) 0.2 percent of the combustion concentration (99.8 percent reduction) when combusting coal, oil, wood, a mixture of these fuels, or a mixture of these fuels with any other fuels.
(3) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no owner or operator of an affected facility that commences modification after February 28, 2005, and that combusts over 30 percent wood (by heat input) on an annual basis and has a heat input capacity of 8.7 MW (30 MMBtu/hr) or greater shall cause to be discharged into the atmosphere from that affected facility any gases that contain PM in excess of 43 ng/J (0.10 lb/MMBtu) heat input.
(4) On and after the date on which the initial performance test is completed or is required to be completed under § 60.8, whichever date comes first, no
(a) Except as provided in paragraphs (g) and (h) of this section and § 60.8(b), performance tests required under § 60.8 shall be conducted following the procedures specified in paragraphs (b), (c), (d), (e), and (f) of this section, as applicable. Section 60.8(f) does not apply to this section. The 30-day notice required in § 60.8(d) applies only to the initial performance test unless otherwise specified by the Administrator.
(b) The initial performance test required under § 60.8 shall be conducted over 30 consecutive operating days of the steam generating unit. Compliance with the percent reduction requirements and SO
(c) After the initial performance test required under paragraph (b) of this section and § 60.8, compliance with the percent reduction requirements and SO
(d) If only coal, only oil, or a mixture of coal and oil is combusted in an affected facility, the procedures in Method 19 of appendix A of this part are used to determine the hourly SO
(e) If coal, oil, or coal and oil are combusted with other fuels:
(1) An adjusted E
(2) The owner or operator of an affected facility that qualifies under the provisions of § 60.42c(c) or (d) (where percent reduction is not required) does not have to measure the parameters E
(f) Affected facilities subject to the percent reduction requirements under § 60.42c(a) or (b) shall determine compliance with the SO
(1) If only coal is combusted, the percent of potential SO
(2) If coal, oil, or coal and oil are combusted with other fuels, the same procedures required in paragraph (f)(1) of this section are used, except as provided for in the following:
(i) To compute the %P
(ii) To compute E
(g) For oil-fired affected facilities where the owner or operator seeks to demonstrate compliance with the fuel oil sulfur limits under § 60.42c based on shipment fuel sampling, the initial performance test shall consist of sampling and analyzing the oil in the initial tank of oil to be fired in the steam generating unit to demonstrate that the oil contains 0.5 weight percent sulfur or less. Thereafter, the owner or operator of the affected facility shall sample the oil in the fuel tank after each new shipment of oil is received, as described under § 60.46c(d)(2).
(h) For affected facilities subject to § 60.42c(h)(1), (2), or (3) where the owner or operator seeks to demonstrate
(i) The owner or operator of an affected facility seeking to demonstrate compliance with the SO
(j) The owner or operator of an affected facility shall use all valid SO
(a) The owner or operator of an affected facility subject to the PM and/or opacity standards under § 60.43c shall conduct an initial performance test as required under § 60.8, and shall conduct subsequent performance tests as requested by the Administrator, to determine compliance with the standards using the following procedures and reference methods, except as specified in paragraph (c) of this section.
(1) Method 1 of appendix A of this part shall be used to select the sampling site and the number of traverse sampling points.
(2) Method 3 of appendix A of this part shall be used for gas analysis when applying Method 5, 5B, or 17 of appendix A of this part.
(3) Method 5, 5B, or 17 of appendix A of this part shall be used to measure the concentration of PM as follows:
(i) Method 5 of appendix A of this part may be used only at affected facilities without wet scrubber systems.
(ii) Method 17 of appendix A of this part may be used at affected facilities with or without wet scrubber systems provided the stack gas temperature does not exceed a temperature of 160 °C (320 °F). The procedures of Sections 8.1 and 11.1 of Method 5B of appendix A of this part may be used in Method 17 of appendix A of this part only if Method 17 of appendix A of this part is used in conjunction with a wet scrubber system. Method 17 of appendix A of this part shall not be used in conjunction with a wet scrubber system if the effluent is saturated or laden with water droplets.
(iii) Method 5B of appendix A of this part may be used in conjunction with a wet scrubber system.
(4) The sampling time for each run shall be at least 120 minutes and the minimum sampling volume shall be 1.7 dry standard cubic meters (dscm) [60 dry standard cubic feet (dscf)] except that smaller sampling times or volumes may be approved by the Administrator when necessitated by process variables or other factors.
(5) For Method 5 or 5B of appendix A of this part, the temperature of the sample gas in the probe and filter holder shall be monitored and maintained at 160±14 °C (320±25 °F).
(6) For determination of PM emissions, an oxygen (O
(7) For each run using Method 5, 5B, or 17 of appendix A of this part, the emission rates expressed in ng/J (lb/MMBtu) heat input shall be determined using:
(i) The O
(ii) The dry basis F factor, and
(iii) The dry basis emission rate calculation procedure contained in Method 19 of appendix A of this part.
(8) Method 9 of appendix A of this part (6-minute average of 24 observations) shall be used for determining the opacity of stack emissions.
(b) The owner or operator of an affected facility seeking to demonstrate compliance with the PM standards under § 60.43c(b)(2) shall demonstrate the maximum design heat input capacity of the steam generating unit by operating the steam generating unit at this capacity for 24 hours. This demonstration shall be made during the initial performance test, and a subsequent demonstration may be requested at any other time. If the demonstrated 24-hour average firing rate for the affected facility is less than the maximum design heat input capacity stated by the manufacturer of the affected facility, the demonstrated 24-hour average firing rate shall be used to determine the annual capacity factor for the affected facility; otherwise, the maximum design heat input capacity provided by the manufacturer shall be used.
(c) In place of PM testing with EPA Reference Method 5, 5B, or 17 of appendix A of this part, an owner or operator may elect to install, calibrate, maintain, and operate a CEMS for monitoring PM emissions discharged to the atmosphere and record the output of the system. The owner or operator of an affected facility who elects to continuously monitor PM emissions instead of conducting performance testing using EPA Method 5, 5B, or 17 of appendix A of this part shall install, calibrate, maintain, and operate a CEMS and shall comply with the requirements specified in paragraphs (c)(1) through (c)(13) of this section.
(1) Notify the Administrator 1 month before starting use of the system.
(2) Notify the Administrator 1 month before stopping use of the system.
(3) The monitor shall be installed, evaluated, and operated in accordance with § 60.13 of subpart A of this part.
(4) The initial performance evaluation shall be completed no later than 180 days after the date of initial startup of the affected facility, as specified under § 60.8 of subpart A of this part or within 180 days of notification to the Administrator of use of CEMS if the owner or operator was previously determining compliance by Method 5, 5B, or 17 of appendix A of this part performance tests, whichever is later.
(5) The owner or operator of an affected facility shall conduct an initial performance test for PM emissions as required under § 60.8 of subpart A of this part. Compliance with the PM emission limit shall be determined by using the CEMS specified in paragraph (d) of this section to measure PM and calculating a 24-hour block arithmetic average emission concentration using EPA Reference Method 19 of appendix A of this part, section 4.1.
(6) Compliance with the PM emission limit shall be determined based on the 24-hour daily (block) average of the hourly arithmetic average emission concentrations using CEMS outlet data.
(7) At a minimum, valid CEMS hourly averages shall be obtained as specified in paragraph (d)(7)(i) of this section for 75 percent of the total operating hours per 30-day rolling average.
(i) At least two data points per hour shall be used to calculate each 1-hour arithmetic average.
(ii) [Reserved]
(8) The 1-hour arithmetic averages required under paragraph (d)(7) of this section shall be expressed in ng/J or lb/MMBtu heat input and shall be used to calculate the boiler operating day daily arithmetic average emission concentrations. The 1-hour arithmetic averages shall be calculated using the data points required under § 60.13(e)(2) of subpart A of this part.
(9) All valid CEMS data shall be used in calculating average emission concentrations even if the minimum CEMS data requirements of paragraph (d)(7) of this section are not met.
(10) The CEMS shall be operated according to Performance Specification 11 in appendix B of this part.
(11) During the correlation testing runs of the CEMS required by Performance Specification 11 in appendix B of this part, PM and O
(i) For PM, EPA Reference Method 5, 5B, or 17 of appendix A of this part shall be used.
(ii) For O
(12) Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with procedure 2 in appendix F of this part. Relative Response Audit's must be performed annually and Response Correlation Audits must be performed every 3 years.
(13) When PM emissions data are not obtained because of CEMS breakdowns, repairs, calibration checks, and zero and span adjustments, emissions data shall be obtained by using other monitoring systems as approved by the Administrator or EPA Reference Method 19 of appendix A of this part to provide, as necessary, valid emissions data for a minimum of 75 percent of total operating hours on a 30-day rolling average.
(d) The owner or operator of an affected facility seeking to demonstrate compliance under § 60.43c(e)(4) shall follow the applicable procedures under § 60.48c(f). For residual oil-fired affected facilities, fuel supplier certifications are only allowed for facilities with heat input capacities between 2.9 and 8.7 MW (10 to 30 MMBtu/hr).
(a) Except as provided in paragraphs (d) and (e) of this section, the owner or operator of an affected facility subject to the SO
(b) The 1-hour average SO
(c) The procedures under § 60.13 shall be followed for installation, evaluation, and operation of the CEMS.
(1) All CEMS shall be operated in accordance with the applicable procedures under Performance Specifications 1, 2, and 3 of appendix B of this part.
(2) Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with Procedure 1 of appendix F of this part.
(3) For affected facilities subject to the percent reduction requirements under § 60.42c, the span value of the SO
(4) For affected facilities that are not subject to the percent reduction requirements of § 60.42c, the span value of the SO
(d) As an alternative to operating a CEMS at the inlet to the SO
(1) For affected facilities combusting coal or oil, coal or oil samples shall be collected daily in an as-fired condition at the inlet to the steam generating unit and analyzed for sulfur content and heat content according to Method 19 of appendix A of this part. Method 19 of appendix A of this part provides procedures for converting these measurements into the format to be used in calculating the average SO
(2) As an alternative fuel sampling procedure for affected facilities combusting oil, oil samples may be collected from the fuel tank for each steam generating unit immediately after the fuel tank is filled and before any oil is combusted. The owner or operator of the affected facility shall analyze the oil sample to determine the sulfur content of the oil. If a partially empty fuel tank is refilled, a new sample and analysis of the fuel in the tank would be required upon filling. Results of the fuel analysis taken after each new shipment of oil is received shall be used as the daily value when calculating the 30-day rolling average until the next shipment is received. If the fuel analysis shows that the sulfur content in the fuel tank is greater than 0.5 weight percent sulfur, the owner or operator shall ensure that the sulfur content of subsequent oil shipments is low enough to cause the 30-day rolling average sulfur content to be 0.5 weight percent sulfur or less.
(3) Method 6B of appendix A of this part may be used in lieu of CEMS to measure SO
(e) The monitoring requirements of paragraphs (a) and (d) of this section shall not apply to affected facilities subject to § 60.42c(h)(1), (2), or (3) where the owner or operator of the affected facility seeks to demonstrate compliance with the SO
(f) The owner or operator of an affected facility operating a CEMS pursuant to paragraph (a) of this section, or conducting as-fired fuel sampling pursuant to paragraph (d)(1) of this section, shall obtain emission data for at least 75 percent of the operating hours in at least 22 out of 30 successive steam generating unit operating days. If this minimum data requirement is not met with a single monitoring system, the owner or operator of the affected facility shall supplement the emission data with data collected with other monitoring systems as approved by the Administrator.
(a) Except as provided in paragraphs (c) and (d) of this section, the owner or operator of an affected facility combusting coal, oil, or wood that is subject to the opacity standards under § 60.43c shall install, calibrate, maintain, and operate a COMS for measuring the opacity of the emissions discharged to the atmosphere and record the output of the system.
(b) All COMS for measuring opacity shall be operated in accordance with the applicable procedures under Performance Specification 1 of appendix B of this part. The span value of the opacity COMS shall be between 60 and 80 percent.
(c) Affected facilities that burn only distillate oil that contains no more than 0.5 weight percent sulfur and/or liquid or gaseous fuels with potential sulfur dioxide emission rates of 26 ng/J (0.06 lb/MMBtu) heat input or less and that do not use a post combustion technology to reduce SO
(d) Owners or operators complying with the PM emission limit by using a PM CEMS monitor instead of monitoring opacity must calibrate, maintain, and operate a CEMS, and record the output of the system, for PM emissions discharged to the atmosphere as specified in § 60.45c(d). The CEMS specified in paragraph § 60.45c(d) shall be operated and data recorded during all periods of operation of the affected facility except for CEMS breakdowns and repairs. Data is recorded during calibration checks, and zero and span adjustments.
(a) The owner or operator of each affected facility shall submit notification of the date of construction or reconstruction and actual startup, as provided by § 60.7 of this part. This notification shall include:
(1) The design heat input capacity of the affected facility and identification of fuels to be combusted in the affected facility.
(2) If applicable, a copy of any federally enforceable requirement that limits the annual capacity factor for any fuel or mixture of fuels under § 60.42c, or § 60.43c.
(3) The annual capacity factor at which the owner or operator anticipates operating the affected facility based on all fuels fired and based on each individual fuel fired.
(4) Notification if an emerging technology will be used for controlling SO
(b) The owner or operator of each affected facility subject to the SO
(c) The owner or operator of each coal-fired, oil-fired, or wood-fired affected facility subject to the opacity limits under § 60.43c(c) shall submit excess emission reports for any excess emissions from the affected facility that occur during the reporting period.
(d) The owner or operator of each affected facility subject to the SO
(e) The owner or operator of each affected facility subject to the SO
(1) Calendar dates covered in the reporting period.
(2) Each 30-day average SO
(3) Each 30-day average percent of potential SO
(4) Identification of any steam generating unit operating days for which SO
(5) Identification of any times when emissions data have been excluded from the calculation of average emission rates; justification for excluding data; and a description of corrective actions taken if data have been excluded for periods other than those during which coal or oil were not combusted in the steam generating unit.
(6) Identification of the F factor used in calculations, method of determination, and type of fuel combusted.
(7) Identification of whether averages have been obtained based on CEMS rather than manual sampling methods.
(8) If a CEMS is used, identification of any times when the pollutant concentration exceeded the full span of the CEMS.
(9) If a CEMS is used, description of any modifications to the CEMS that could affect the ability of the CEMS to comply with Performance Specifications 2 or 3 of appendix B of this part.
(10) If a CEMS is used, results of daily CEMS drift tests and quarterly accuracy assessments as required under appendix F, Procedure 1 of this part.
(11) If fuel supplier certification is used to demonstrate compliance, records of fuel supplier certification is used to demonstrate compliance, records of fuel supplier certification as described under paragraph (f)(1), (2), (3), or (4) of this section, as applicable. In addition to records of fuel supplier certifications, the report shall include a certified statement signed by the owner or operator of the affected facility that the records of fuel supplier certifications submitted represent all of the fuel combusted during the reporting period.
(f) Fuel supplier certification shall include the following information:
(1) For distillate oil:
(i) The name of the oil supplier;
(ii) A statement from the oil supplier that the oil complies with the specifications under the definition of distillate oil in § 60.41c; and
(iii) The sulfur content of the oil.
(2) For residual oil:
(i) The name of the oil supplier;
(ii) The location of the oil when the sample was drawn for analysis to determine the sulfur content of the oil, specifically including whether the oil was sampled as delivered to the affected facility, or whether the sample was drawn from oil in storage at the oil supplier's or oil refiner's facility, or other location;
(iii) The sulfur content of the oil from which the shipment came (or of the shipment itself); and
(iv) The method used to determine the sulfur content of the oil.
(3) For coal:
(i) The name of the coal supplier;
(ii) The location of the coal when the sample was collected for analysis to determine the properties of the coal, specifically including whether the coal was sampled as delivered to the affected facility or whether the sample was collected from coal in storage at the mine, at a coal preparation plant, at a coal supplier's facility, or at another location. The certification shall include the name of the coal mine (and coal seam), coal storage facility, or coal preparation plant (where the sample was collected);
(iii) The results of the analysis of the coal from which the shipment came (or of the shipment itself) including the sulfur content, moisture content, ash content, and heat content; and
(iv) The methods used to determine the properties of the coal.
(4) For other fuels:
(i) The name of the supplier of the fuel;
(ii) The potential sulfur emissions rate of the fuel in ng/J heat input; and
(iii) The method used to determine the potential sulfur emissions rate of the fuel.
(g)(1) Except as provided under paragraph (g)(2) of this section, the owner or operator of each affected facility shall record and maintain records of the amount of each fuel combusted during each operating day.
(2) As an alternative to meeting the requirements of paragraph (g)(1) of this section, the owner or operator of an affected facility that combusts only natural gas, wood, fuels using fuel certification in § 60.48c(f) to demonstrate compliance with the SO
(h) The owner or operator of each affected facility subject to a federally enforceable requirement limiting the annual capacity factor for any fuel or mixture of fuels under § 60.42c or § 60.43c shall calculate the annual capacity factor individually for each fuel combusted. The annual capacity factor is determined on a 12-month rolling average basis with a new annual capacity factor calculated at the end of the calendar month.
(i) All records required under this section shall be maintained by the owner or operator of the affected facility for a period of two years following the date of such record.
(j) The reporting period for the reports required under this subpart is each six-month period. All reports shall be submitted to the Administrator and shall be postmarked by the 30th day following the end of the reporting period.
Securities and Exchange Commission (“Commission”).
Proposed rule.
The Commission is proposing for comment rules to implement provisions of the Credit Rating Agency Reform Act of 2006 (the “Act”), enacted on September 29, 2006. The Act defines the term “nationally recognized statistical rating organization,” provides authority for the Commission to implement registration, recordkeeping, financial reporting, and oversight rules with respect to registered credit rating agencies, and directs the Commission to issue final implementing rules no later than 270 days after its enactment (or by June 26, 2007).
Comments should be received on or before March 12, 2007.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number S7-04-07. This file number should be included on the subject line if e-mail is used. To help us 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 (
Michael A. Macchiaroli, Associate Director, at (202) 551-5525; Thomas K. McGowan, Assistant Director, at (202) 551-5521; Randall W. Roy, Branch Chief, at (202) 551-5522; Rose Russo Wells, Attorney, at (202) 551-5527; Sheila Swartz, Attorney, at (202) 551-5545, Division of Market Regulation, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6628.
The credit rating business has expanded significantly over the last 100 years. Credit rating agencies now issue credit ratings for debt securities of public companies, sovereign governments, and municipalities, and for structured products such as asset backed securities. They also issue ratings on money market instruments such as commercial paper and with respect to obligors (that is, a credit assessment of an entity as opposed to the entity's securities). Obligor ratings are issued on, among other entities, public companies, sovereign governments, and non-public companies such as banks and insurance companies.
The scope of the credit rating business reflects the importance of credit ratings to securities market participants and other creditors. Investors use credit ratings to make investment decisions. Large public institutions, such as pension funds, also use credit ratings to prescribe the types of securities the institution is permitted to hold. Creditors, such as commercial and investment banks, use credit ratings to manage credit risk and govern transactional agreements. For example, credit agreements frequently contain trigger provisions requiring more collateral if the creditor's credit rating drops.
In addition, regulatory bodies have come to rely on credit ratings. In 1975, the Commission adopted the term “nationally recognized statistical rating organization” or “NRSRO” as part of amendments to its broker-dealer net capital rule
The Commission's incorporation of the term “nationally recognized statistical rating organization” into the net capital rule provided a means to distinguish between different classes of debt securities for the purpose of prescribing applicable haircuts.
Although the Commission used the term “nationally recognized statistical rating organization” in the net capital rule, it did not provide a definition. The Commission staff has identified NRSROs through no-action letters.
If these assessments were both positive, the Commission staff, after seeking the advice of the Commission, would issue a no-action letter informing broker-dealers that they could treat the credit rating agency as an NRSRO for purposes of the net capital rule.
Over time, the Commission has imported the NRSRO concept into a number of other rules.
The term “NRSRO” also has been incorporated into a wide range of federal legislation.
Further, a number of other federal, state, and foreign laws and regulations have incorporated the term “NRSRO.” For example, the U.S. Department of Education uses ratings from NRSROs to set standards of financial responsibility for institutions seeking to participate in student financial assistance programs under Title IV of the Higher Education Act of 1965, as amended.
The Act
Over the years, the Commission has made attempts to address these issues
In overview, the Act adds definitions to Section 3 of the Exchange Act,
The statutory provisions of the Act prohibit reliance on Commission staff no-action letters identifying NRSROs.
The Act mandates that the rules adopted to implement its provisions be “narrowly tailored” to meet the Act's requirements.
Under the proposed rules,
After registration, the credit rating agency (now an NRSRO under the Act) would need to promptly update the information on its Form NRSRO to the extent an item or exhibit becomes materially inaccurate, with certain exceptions.
After registration, the NRSRO would be subject to several substantive rules. First, the NRSRO would be subject to a recordkeeping rule, under which the NRSRO would be required to make and retain certain records relating to the business of issuing credit ratings.
On an annual fiscal year basis, an NRSRO would be required to furnish the Commission with audited financial statements.
Finally, all NRSROs would be subject to requirements designed to protect their impartiality with respect to issuing credit ratings. First, they would be required to establish, maintain, and enforce specific written policies designed to prevent the misuse of material non-public information.
The provisions of proposed Rule 17g-1 would implement rulemaking authority under the Act with respect to how a credit rating agency must apply to be registered as an NRSRO, make the non-confidential information in its application public, apply to add an additional category of credit ratings to its registration, update its application, furnish the annual certification, and withdraw its registration.
The Act, by adding definitions to Section 3 of the Exchange Act,
(A) Has been in business as a credit rating agency for at least the three consecutive years immediately preceding the date of its application for registration under section 15E [of the Exchange Act];
(B) Issues credit ratings certified by qualified institutional buyers, in accordance with section 15E(a)(1)(B)(ix) [of the Exchange Act], with respect to
(i) Financial institutions, brokers, or dealers;
(ii) Insurance companies;
(iii) Corporate issuers;
(iv) Issuers of asset-backed securities (as that term is defined in [17 CFR 229.1101(c)]);
(v) Issuers of government securities, municipal securities, or securities issued by a foreign government; or
(vi) A combination of one or more categories of obligors described in any of clauses (i) through (v); and
(C) Is registered under section 15E [of the Exchange Act].
Section 3 of the Exchange Act also defines the term “credit rating agency” as any person:
(A) Engaged in the business of issuing credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee, but does not include a commercial credit reporting company;
(B) Employing either a quantitative or qualitative model, or both, to determine credit ratings; and
(C) receiving fees from either issuers, investors, or other market participants, or a combination thereof.
Finally, Section 3 of the Exchange Act defines the term “credit rating” to mean “an assessment of the creditworthiness of an obligor as an entity or with respect to specific securities or money market instruments.”
Taken together, these three definitions limit the type of entity eligible to be registered with the Commission as an NRSRO. First, the entity must meet the definition of “credit rating agency” in Section 3 of the Exchange Act, which means, among other things, it must issue “credit ratings” as that term is defined in the act. Thus, an entity that issues “credit ratings” but does not receive compensation from issuers, investors, or other market participants would not be eligible for registration as an NRSRO because it would not meet the third prong of the definition of “credit rating agency.”
Another component of the first prong in the definition of “credit rating agency” is that the entity must be engaged in the business of issuing credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee.
Additionally, the Commission preliminarily believes that the determination of whether a fee for accessing or obtaining credit ratings is reasonable would depend on the facts and circumstances. The Commission requests comment on the issue of determination of the reasonableness of fees charged by NRSROs for accessing or obtaining their credit ratings; in particular, the Commission requests comment on this issue in the context of users of credit ratings for regulatory purposes.
Finally, if an entity meets the definition of “credit rating agency,” the entity must have been in the business of issuing credit ratings for the three years immediately preceding the date of its application for registration to be eligible to apply to register with the Commission as an NRSRO.
A credit rating agency that elects to be treated as an NRSRO must apply to the Commission to be registered as an NRSRO. Section 15E(a)(1)(A) of the Exchange Act provides that a credit rating agency applying for registration must furnish the Commission with an application in a form prescribed by Commission rule.
Paragraph (a) of proposed Rule 17g-1 would implement these provisions by providing that a credit rating agency applying to be registered with the Commission as an NRSRO would be required to furnish the Commission with an application on Form NRSRO. As discussed below, a credit rating agency would be able to apply to be registered for less than all five of the categories of credit ratings identified in Section 3(a)(62)(B) of the Exchange Act.
Paragraph (b)(1) of proposed Rule 17g-1 provides that an application would be considered furnished to the Commission on the date that the Commission receives a complete and properly executed Form NRSRO that follows all applicable instructions for the form.
Paragraph (b)(1) of proposed Rule 17g-1 also provides that information submitted with the application on a confidential basis would be accorded confidential treatment to the extent permitted by law. As discussed in detail below, the information proposed to be required in Form NRSRO includes information which an NRSRO would need to make public after registration and information that is submitted on a confidential basis to the extent permitted by law. Some of the confidential information is required by Section 15E(a)(1)(B) of the Exchange Act.
Paragraph (b)(2) of proposed Rule 17g-1 would provide a mechanism for a credit rating agency to withdraw its application before the Commission takes final action on it.
Paragraph (c) of proposed Rule 17g-1 would provide that if information on the application becomes materially inaccurate before the Commission has granted or denied the application, the credit rating agency must promptly notify the Commission and amend the application with accurate and complete information by submitting an amended initial application on proposed Form NRSRO.
Section 15E(a)(3) of the Exchange Act provides that the Commission, by rule, shall require an NRSRO, after registration, to make the information submitted in its completed application and any amendments publicly available on its Web site or through another comparable, readily accessible means.
Paragraph (d) of proposed Rule 17g-1 would require that the information be made publicly available within five business days of the NRSRO being registered or furnishing an amendment or annual certification. The five business-day period is intended to provide the NRSRO with sufficient time to make the information public while also designed to ensure that users of credit ratings would have access to information within a reasonably short timeframe. Under the proposed rule, certain additional information submitted pursuant to Commission rulemaking authority also would not need to be made publicly available after registration.
While Section 15E(a)(3) of the Exchange Act
As noted, a credit rating agency may apply to be registered for fewer than all five categories of credit ratings described in Section 3(a)(62)(B) of the Exchange Act.
Section 15E(b)(1) of the Exchange Act requires an NRSRO to promptly amend its application for registration if, after registration, any information or document provided as part of the application becomes materially inaccurate.
Section 15E(b)(2) of the Exchange Act requires an NRSRO to furnish the Commission with an amendment to its registration not later than 90 days after the end of each calendar year in a form prescribed by Commission rule.
Finally, Section 15E(e)(1) of the Exchange Act provides that an NRSRO may withdraw from registration, subject to terms and conditions the Commission may establish as necessary in the public interest or for the protection of investors, by furnishing the Commission with a written notice of withdrawal.
The Commission generally requests comment on all aspects of this proposed rule. The Commission also seeks comment on whether the five-day time limit for making the non-confidential information in the application publicly available should be longer or shorter. For example, the Commission seeks comment on whether five days is a sufficient amount of time to make an initial application public, given the volume of information that may need to be posted on a Web site or made public through another comparable means. Additionally, the Commission requests comment on ways other than the Internet that the information could be made public that would be comparable to posting the information on a Web site, particularly in terms of ensuring that users of credit ratings would have a comparable ease of access to the information. Further, the Commission seeks comment on whether it should define the term “promptly” in section 15E(b)(1) of the Exchange Act
The Commission is proposing a new form, “Form NRSRO,” the “Application for Registration as a Nationally Recognized Statistical Rating Organization.” The form is designed to serve four functions: To apply for initial registration, to amend the scope of registration, to amend public information required by the form, and to make an annual certification. Instructions for the form describe how an applicant, and after registration, an NRSRO, should complete the form in each of these circumstances. The Commission construes the Act's requirement that implementing rules be “narrowly tailored” to also apply to proposed Form NRSRO.
The Commission believes that having just one form (and one set of instructions) would reduce the burden on applicants, NRSROs, and
A credit rating agency applying for registration as an NRSRO would need to complete the form by providing the required information in all the items (except Item 7)
The Commission would use the information provided on the form to make the threshold determination whether the applicant is a “credit rating agency” as defined in section 3(a)(61) of the Exchange Act and would meet the definition of “NRSRO” in section 3(a)(62) of the Exchange Act.
After registration, an NRSRO would use Form NRSRO if it sought to apply for registration with respect to an additional category of credit ratings. In this case, the NRSRO would not need to update the non-public exhibits, and it also would not need to update the public exhibits to the extent that information or documents previously provided remained materially accurate. However, the fact that the NRSRO was seeking to expand the scope of its registration to an additional category of credit ratings likely would mean certain information provided in the public exhibits would no longer be materially accurate. For example, the NRSRO may have established new or additional methodologies to determine credit ratings in the category for which it was seeking registration. These would need to be provided as an update to Exhibit 2.
An NRSRO also would use Form NRSRO to amend the information on the form and in the public exhibits after registration.
Finally, an NRSRO would use Form NRSRO to furnish the annual certification required by Section 15E(b)(2) of the Exchange Act.
The proposed Form NRSRO is designed to meet these statutory requirements. First, the certification on the facing page would include the representations needed for the annual certification; namely, that the NRSRO's application on Form NRSRO, as amended, continues to be accurate.
Item 3 of proposed Form NRSRO would require a non-resident applicant to attach the required undertaking to its initial application. If the application is granted, the undertaking would be in place when the applicant becomes an NRSRO and is subject to the proposed recordkeeping requirements. The prescribed form of the undertaking would make it applicable only to books and records a credit rating agency is required to make, keep current, retain, or produce to the Commission pursuant to any provision of the Exchange Act
Section 15E(a)(1)(B)(vii) of the Exchange Act requires an applicant for NRSRO registration to provide information with respect to the categories of credit ratings for which it is applying to be registered.
Item 6 also would elicit the approximate number of credit ratings issued in each category as of the date of the application, and the number of consecutive years preceding the date of the application that the credit rating agency has issued credit ratings with respect to each category indicated. This information would be used by the Commission in verifying that the credit rating agency meets the definitional thresholds for registration as NRSRO, including that the entity has been in business as a credit rating agency for the three consecutive years preceding the date of its application.
Item 6 also would elicit a brief description of how the credit rating agency makes its credit ratings readily accessible. The Commission would use this information to verify that the applicant meets another definitional threshold for registration eligibility; namely, that the applicant issues credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee.
Finally, Item 6 would require the applicant to provide QIB certifications. Section 15E(a)(1)(B)(ix) of the Exchange Act requires an applicant to submit a minimum of ten QIB certifications with the application.
The proposed instructions to Item 6 would prescribe the form of the QIB certification. For example, consistent with Section 15E(a)(1)(C)(i)(I) of the Exchange Act
Item 6 of proposed Form NRSRO also would require the applicant to indicate whether it was submitting the QIB certifications and, if so, how many certifications were being submitted or that the applicant was exempt from the requirement to provide the certifications. Under Section 15E(a)(1)(D) of the Exchange Act, a credit rating agency is not required to submit the QIB certifications if it was identified as an NRSRO in a Commission staff no-action letter issued before August 2, 2006.
The Commission requests comment on whether there should be a requirement for an NRSRO to notify the Commission if a QIB withdraws its certification.
Because some of the information in Item 7 may change fairly regularly, this Item would need to be updated if it became materially inaccurate only when the NRSRO furnishes the next Form NRSRO either as an amendment or as an annual certification. Thus, if the information in Item 7 became materially inaccurate, it would be updated on an annual basis at a minimum.
The information requested in Item 7 would allow users of credit ratings to assess the NRSRO with respect to the number of credit ratings it has issued and the number of years it has issued credit ratings in each category for which it is registered.
If a question in Item 8 was answered “yes,” the credit ratingagency would be required to provide additional information on a Disclosure Reporting Page (DRP) NRSRO as set forth in the instructions for Form NRSRO. The Commission would then need to evaluate whether an applicant's registration could be granted in light of the disclosure. After registration, an NRSRO would need to update the information in Item 8 if there was a change. The Commission would then evaluate whether it would be appropriate to issue an order censuring,
Proposed Form NRSRO would have 13 exhibits. Sections 15E(a)(1)(B)(i), (ii), (iii), (iv), (v), (vi), and (viii) of the Exchange Act require the furnishing of some of this information.
Exhibits 1 through 9 would be public exhibits that the NRSRO would be required to keep current through furnishing updated information and make readily accessible to the public. The information in these public exhibits would be useful to the users of credit ratings in assessing the ratings quality of the NRSRO and in comparing the NRSRO to other NRSROs.
Exhibits 10 through 13 would be accorded confidential treatment by the Commission, to the extent permitted by law, under provisions of Section 15E of the Exchange Act
The information in Exhibits 10 through 13 would not need to be updated by furnishing amendments on proposed Form NRSRO after registration is granted. Instead, this information would be updated through the proposed financial reporting rule (proposed Rule 17g-3). Section 15E(b)(1) of the Exchange Act
In addition to historical default and downgrade rates, the instructions to proposed Form NRSRO also would provide that an applicant or NRSRO include in the exhibit definitions of the credit ratings (
The definitions of the notches and grades also would assist the Commission in assessing whether the NRSRO's ratings, as a practical matter, can be used for certain Commission rules. For example, paragraph(c)(2)(vi)(F) of Commission Rule 15c3-1 specifies lower haircuts for debt securities that are rated in one of the “four highest rating categories” (
The Commission generally requests comment on Exhibit 1. The Commission also requests comment on whether the performance measurement statistics should use standardized inputs, time horizons and metrics to allow for greater comparability. Commenters are requested to provide specific details as to how these statistical measures could
The Commission believes that entities meeting the definition of “credit rating agency” in Section 3(a)(61) of the Exchange Act
This list identifies areas where a credit rating agency could establish procedures and methodologies for determining credit ratings. The applicability of certain areas to a particular credit rating agency may depend on whether it uses subjective qualitative analysis, purely quantitative models or a combination of both.
In addition, credit rating agencies that issue “unsolicited” credit ratings may establish procedures and methodologies in the areas described above that are unique to such ratings. An “unsolicited” credit rating is one the credit rating agency decides to initiate without being requested to do so by an issuer, obligor, underwriter, or other interested party. Credit rating agencies that use a subscription fee based business model may only issue unsolicited ratings because that business model does not rely on fees from issuers, obligors, and underwriters to determine specific credit ratings (issuers, obligors, and underwriters, however, may subscribe to receive the credit ratings of such credit rating agencies). The procedures and methodologies these credit rating agencies employ, in some respects, may be unique to this business model.
Credit rating agencies that are paid by issuers, obligors, and underwriters to determine specific credit ratings sometimes also issue unsolicited ratings. As discussed below with regard to proposed Rule 17g-6, this practice has led to concerns that unsolicited ratings may be used to coerce issuers and obligors into ultimately paying the credit rating agency to determine and maintain the credit rating. Consequently, the Commission believes that credit rating agencies that rely on fees from issuers, obligors, and underwriters to determine specific credit ratings, but also issue unsolicited ratings, often have established procedures and methodologies for determining unsolicited credit ratings that are designed to address this concern and the fact that the issuer or obligor may not have participated in the determination of the credit rating (as is frequently the case with a solicited credit rating).
The Commission believes that information regarding the procedures and methodologies established by an NRSRO in the areas described above, including those with respect to unsolicited credit ratings, as applicable, would be useful to users of credit ratings. The information would provide an understanding of the nature of the credit rating agency (
The Commission generally requests comment on Exhibit 2, as proposed. The Commission also requests comment on whether the areas identified above are the areas where credit rating agencies establish procedures and methodologies for determining credit ratings. A commenter that believes one or more of the areas identified above is not one where any type of credit rating agency establishes procedures and methodologies should identify each area and explain the reason for such conclusion. The Commission also requests comment on whether there are additional areas where credit rating agencies establish procedures and methodologies for determining credit ratings and, if so, requests that commenters identify them.
Section 15E(g)(1) of the Exchange Act
The Commission generally requests comment on Exhibit 3, as proposed.
The Commission believes that, if a credit rating agency is part of a holding company structure, users of credit ratings and the Commission would benefit from an organizational chart showing the entity's ultimate and sub-holding companies, subsidiaries, and material affiliates. This chart would provide an understanding of where potential conflicts of interest relating to the business activities of related companies might arise. Also, the fact that a credit rating agency has a holding company that potentially could provide financial support would be relevant to the Commission's evaluation of whether an applicant or NRSRO has adequate financial resources as required under the Exchange Act.
The Commission further believes that, if a credit rating agency engages in business activities in addition to determining credit ratings, users of credit ratings and the Commission would benefit from an organizational chart showing the entity's divisions, departments, and business units. This chart would provide an understanding of where potential conflicts of interest relating to ancillary business activities might arise.
Finally, the Commission believes that users of credit ratings and the Commission would benefit from an organizational chart showing an NRSRO's management structure and senior management reporting lines. This chart would assist the Commission in evaluating whether an applicant and NRSRO has adequate managerial resources as required under the Exchange Act.
Additionally, the instructions to proposed Form NRSRO would provide that this managerial chart include the compliance officer designated by the NRSRO pursuant to Section 15E(j) of the Exchange Act.
For these reasons, Exhibit 4 would provide that the information about the organizational structure of the applicant or NRSRO required to be furnished and made public under Section 15E(a)(1)(B)(iv) of the Exchange Act
The Commission generally requests comment on Exhibit 4, as proposed. The Commission specifically also requests comment on whether including the compliance officer in the chart would achieve the stated purpose of the requirement. The Commission further requests comment on whether other organizational information should be provided, or whether some of the information proposed to be required should be eliminated or modified. Commenters who believe that other information should be provided are asked to describe the information and explain why it would be appropriate under Section 15E of the Exchange Act.
The Commission generally requests comment on Exhibit 5, as proposed. The Commission also requests comment on whether it should propose specific elements to be included in the code of ethics provided in Exhibit 5. Commenters who believe the Commission should propose specific elements are asked to describe them. The Commission further seeks comment on whether it should require in Exhibit 5 that NRSROs disclose whether they comply with international principles and codes of conduct related to credit rating agencies.
The Exchange Act does not otherwise define or identify the types of conflicts of interest that should be disclosed under Section 15E(a)(1)(B)(vi) of the Exchange Act.
The Commission believes that the types of conflicts of interest arising from the activities of credit rating agencies include, as applicable: receiving compensation from rated obligors, issuers of rated securities and money market instruments, and underwriters of rated securities and money market instruments to determine or maintain a credit rating and for other services; owning securities of, or having any other form of ownership interest in, a rated obligor, issuer of rated securities and money market instruments, or underwriter of rated securities and money market instruments; receiving compensation for any service from subscribers that use credit ratings for regulatory purposes; owning securities of, or having any other form of ownership interest in, a subscriber that uses credit ratings for regulatory purposes; and having another material business relationship (
The Commission believes the above list covers the range of general conflicts of interest that arise from the activities of credit rating agencies.
The instructions to Form NRSRO also would provide that an applicant and NRSRO include in Exhibit 6 the identity of any affiliated entity that acts as an underwriter or uses credit ratings for regulatory purposes.
The Commission generally requests comment on Exhibit 6, as proposed. The Commission also requests comment on whether there are conflicts of interest that should be disclosed in addition to those identified above, or whether some of the information proposed to be required should be eliminated or modified. Commenters who believe that other conflicts exist should describe how they arise from the business of credit rating agencies. The Commission further requests specific comment on whether requiring the identification of affiliates that are underwriters and regulatory users of credit ratings would achieve the stated purpose of the requirement.
The Commission requests general comment on Exhibit 7, as proposed, including on whether including this information would achieve the stated purpose of the requirement.
The Commission believes that requiring an applicant and NRSRO to disclose information about the responsibilities, experience and employment history of its credit analysts and supervisors would be necessary or appropriate in the public interest or for the protection of investors.
The Commission requests comment on Exhibit 8, as proposed. Comment is specifically sought on whether the information would be helpful to users of credit ratings in comparing the NRSRO to other NRSROs. The Commission also requests comment on whether other information should be provided, or whether some of the information proposed to be required should be eliminated or modified. For example, comment is sought on whether Exhibit 8 should be limited to eliciting information about the supervisors of the credit analysts. Commenters who believe other information should be provided should describe the information and explain why it would be appropriate.
The Commission believes that requiring information about the experience and employment history of the designated compliance officer and persons assisting the officer would be necessary or appropriate in the public interest or for the protection of investors. It would assist the Commission in evaluating whether the applicant has adequate managerial resources to consistently produce credit ratings with integrity and to materially comply with its procedures and methodologies.
The Commission requests comment on Exhibit 9, as proposed. The Commission also requests comment on whether other information should be provided, or whether some of the information proposed to be required should be eliminated or modified. Commenters should describe the additional information and why it would be appropriate.
The statute refers to the “20 largest issuers and subscribers.” The instructions to Exhibit 10 would provide that an applicant add certain large obligors (
The Commission believes that adding large obligor and underwriter customers to the list of the 20 largest issuer and subscriber customers would be necessary or appropriate in the public interest or for the protection of investors.
Section 15E(a)(1)(B)(viii) of the Exchange Act limits the customers required to be included in the list to users of the “credit rating services” of the applicant and NRSRO.
Section 15E(a)(1)(B)(viii) of the Exchange Act provides that the determination of the 20 largest issuers and subscribers is to be based on “net revenue” received from the issuer or subscriber.
The Commission requests comment on Exhibit 10, as proposed. The Commission specifically requests comment on its proposal to include large obligor and underwriter customers in the list. The Commission further requests comment on the proposed interpretations of “credit rating services” and “net revenue.” Specifically, the Commission requests comment on how these interpretations affect the determination of large customers. If a commenter believes they are not practicable, the commenter should provide alternative interpretations and explain how they would achieve the goal of identifying large customers that could potentially exercise undue influence on the NRSRO.
The Commission believes this financial information would be necessary or appropriate in the public interest or for the protection of investors because it would assist the Commission in making the finding required by Section 15E(a)(2)(C) of the Exchange Act.
The proposed requirement that the financial statements be audited would provide the Commission with an independent verification of the information in the statements. However, the Commission anticipates that some applicants may not have been audited in the past. In this case, the applicant would only need to provide an audited financial statement for the fiscal year immediately preceding the date of the application. The other years could be covered by unaudited statements. The applicant would need to attach to the unaudited financial statements a statement by a duly authorized person of the applicant that the financial statements present fairly, in all respects, the financial condition, results of operations, and the cash flows of the applicant. This would provide a level of assurance that the information in the financial statements had been reviewed and verified by the applicant.
In addition, the Commission also anticipates that some applicants would be subsidiaries of holding companies. In this case, the applicant would be able to provide consolidated and consolidating financial statements of the parent company. This would diminish the burden on applicants that have a holding company audit but not an audit of the subsidiary credit rating agency. Consolidated and consolidating financial statements would provide sufficient information about the subsidiary credit rating agency for the Commission to evaluate whether its financial resources meet the requirements of Section 15E(a)(2)(C)(ii)(I) of the Exchange Act.
The Commission requests comment on whether the furnishing of audited financial statements would achieve the stated purposes of the requirement.
As described in the instructions for proposed Form NRSRO, the specific revenue items would be, as applicable:
• Revenue from determining and maintaining credit ratings.
• Revenue from subscribers.
• Revenue from granting licenses or rights to publish credit ratings.
• Revenue from determining credit ratings that are not made readily accessible (private ratings).
• Revenue from all other services and products offered by the rating organization (include descriptions of any major sources of revenue).
The Commission believes this revenue information would be necessary or appropriate in the public interest or for the protection of investors because it would assist the Commission in making the finding with respect to adequate financial resources required by Section 15E(a)(2)(C) of the Exchange Act.
The Commission requests comment on whether the furnishing of this revenue information would achieve the stated purposes of the requirement, or whether any additions, deletions or modifications should be made. The Commission also requests comment on any difficulties a credit rating agency may confront in determining its revenues from these various sources. If a commenter believes it would not be practicable to do so, the commenter should explain why.
The Commission believes this compensation information would be necessary or appropriate in the public interest or for the protection of investors because it would assist the Commission in making the finding with respect to adequate financial resources required by Section 15E(a)(2)(C) of the Exchange Act.
The Commission requests comment on Exhibit 13, as proposed. The Commission also requests comment on any difficulties a credit rating agency would have in determining these compensation amounts. If a commenter believes it would not be practicable to do so, the commenter should explain why.
The Act amends Section 17(a)(1) of the Exchange Act to add NRSROs to the list of entities required to make and keep such records, and make and disseminate such reports, as the Commission prescribes by rule as necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the Exchange Act.
Proposed Rule 17g-2, “Records to be made and retained by nationally recognized statistical rating organizations,” would implement the Commission's recordkeeping rulemaking authority under Section 17(a) of the Exchange Act.
With respect to other regulated entities, the Commission has made clear that books and records rules are “integral to the Commission's investor protection function because the preserved records are the primary means of monitoring compliance with applicable securities laws.”
Paragraph (a) of proposed Rule 17g-2 would require an NRSRO to make and retain certain books and records. Under the proposed rule, the records required in paragraph (a) must be complete and current. Consequently, it would be a violation of the proposed rule to falsify a record or fail to update a record when the information on the record becomes stale or incomplete. The Commission believes the records required to be made and retained under paragraph (a) of proposed Rule 17g-2 would be necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the Exchange Act because, as described below, they would assist the Commission in monitoring whether an NRSRO was complying with Section
The information in these records about the identity of the credit analysts, the persons who approved the credit rating, the methodology used to determine the credit rating, and whether the credit rating was solicited or unsolicited, collectively would assist the Commission in monitoring whether the NRSRO was following its procedures and methodologies for determining credit ratings. The information about the identity of the credit analysts, and the persons who approved the credit rating, also would assist the Commission in monitoring whether the NRSRO was complying with procedures designed to prevent the misuse of material nonpublic information.
There are certain records an NRSRO may make or receive as a matter of business practice. The Commission does not believe an NRSRO should be required, by rule, to make these records. However, the Commission believes an NRSRO should be required to retain these records for a period of time because the records would assist the Commission's oversight of NRSROs. Accordingly, paragraph (b) of proposed Rule 17g-2 would require that an NRSRO retain certain records, if they are made or received by the NRSRO. Since these are not records that are required to be made, they would not need to be updated under the requirements of proposed Rule 17g-2. Rather, the rule would require that the NRSRO retain the original record in an unaltered form or a true copy of the original record for the prescribed retention period. The Commission notes, however, that, under Section 15E(b)(1) of the Exchange Act,
The Commission believes the records required to be retained under paragraph (b) of proposed Rule 17g-2 would be necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the Exchange Act because, as described below, they would assist the Commission in monitoring whether an NRSRO was complying with Section 15E of the Exchange Act
Proposed Rule 17g-2 has additional provisions that would prescribe how long the records in paragraphs (a) and (b) would need to be retained, the manner in which they would need to be retained and the manner in which they, and any other records subject to the Commission's examination authority, would need to be produced. The Commission believes the additional provisions of proposed Rule 17g-2 would be necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the Exchange Act because, as described below, they would assist the Commission in monitoring whether an NRSRO was complying with Section 15E of the Exchange Act and the rules thereunder.
More broadly, the Commission requests comment on all aspects of proposed Rule 17g-2, including whether the proposals could be more narrowly tailored and still meet the stated goals, or whether items should be added, eliminated, or modified. Commenters are asked to explain their conclusions.
Section 15E(k) of the Exchange Act requires an NRSRO to furnish to the Commission, on a confidential basis and at intervals determined by the Commission, such financial statements and information concerning its financial condition that the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors.
First, Section 15E(d) of the Exchange Act provides that the Commission shall, by order, censure, place limitations on the activities, functions or operations of, suspend for a period not exceeding 12 months, or revoke the registration of an NRSRO if, among other things, the NRSRO fails to maintain adequate financial and managerial resources to consistently produce credit ratings with integrity.
Second, Section 15E(b)(1) of the Exchange Act requires an NRSRO to promptly amend its application for registration, as prescribed in that section, if any information or document provided in the application becomes materially inaccurate.
Paragraph (a) also would provide that the financial statements be prepared according to generally accepted accounting principles and comply with applicable provisions of the Commission's Regulation S-X.
As discussed above with respect to Exhibit 10, the list of the largest customers would assist the Commission in identifying customers of an NRSRO that could potentially have undue influence on the NRSRO given the amount of revenue they provide the credit rating agency. The largest customers would be determined using the same definitions of “net revenues” and “credit rating services” discussed with respect to Exhibit 10. In addition, just as with Exhibit 10, obligor and underwriter customers would be added to the list to the extent they were as large as, or larger than, the 20th largest issuer or subscriber customer.
The information on revenue sources and analyst compensation that would be required in the schedule would be the same as the information that would be required in Exhibits 12 and 13, respectively. The information on revenue sources and credit analyst compensation would augment the financial statements by providing detail as to the revenues generated specifically from credit rating services and the expenses necessary to retain the credit rating agency's credit analysts. This information collectively would assist the Commission in monitoring whether an NRSRO maintains adequate financial resources to consistently produce credit ratings with integrity.
Paragraph (c)(2) of proposed Rule 17g-3 would require that the NRSRO attach to the financial statements a statement by a duly authorized person of the NRSRO that the financial statements present fairly, in all respects, the financial condition, results of operations, and the cash flows of the NRSRO. This would provide a level of assurance that the information in the financial statements had been reviewed and verified by the NRSRO. This proposed requirement parallels Commission Rule 17a-5(e)(2), which requires a duly authorized officer of a broker-dealer (or, in the case of a general partnership, the general partner) to attach an oath or affirmation stating the financial statements and schedules required under that rule are true and correct.
Finally, Paragraph (d) of proposed Rule 17g-3 would provide that the Commission may grant an extension of time from any requirements in the proposed rule either unconditionally or on specified terms and conditions on the written request of an NRSRO, if the Commission finds that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors. The Commission believes the 90-day period after the end of the fiscal year to prepare and furnish the financial statements and schedules required under proposed Rule 17g-3 would be a sufficient amount of time to fulfill these requirements. However, there may be situations where an NRSRO would require more time. In such cases, the NRSRO would be required to request an extension in writing and the Commission could grant it unconditionally or subject to certain specified terms and conditions.
Section 15E(g)(1) of the Exchange Act
First, paragraph (a) of proposed Rule 17g-4 would require procedures designed to prevent the inappropriate dissemination within and outside the NRSRO of material nonpublic information obtained for the purpose of developing a credit rating. Some credit rating agencies, as part of their analysis, contact senior management of the obligors and issuers subject to their credit ratings. In the course of these contacts, an issuer or obligor may provide the credit rating agency with nonpublic information including contemplated business transactions or estimated financial projections.
Under paragraph (a) of proposed Rule 17g-4, a credit rating agency that permits its credit analysts to contact an issuer or obligor in the process of determining or maintaining a credit rating would be required to, for example, have procedures reasonably designed to prevent material, non-public information obtained by the credit analyst from being shared with or made readily accessible to any person outside the NRSRO or to persons employed by the NRSRO who do not need to know the information because they are not involved in determining or approving the credit rating. One concern that has been raised in the past is that subscribers to a credit rating agency's more detailed credit reports also may be granted direct access to the credit analysts.
The Commission believes NRSROs should have flexibility to develop procedures tailored to their specific organizational structures and business models and, consequently, is not proposing to prescribe specific procedures. Nonetheless, as applicable to the business model of the NRSRO, an NRSRO could have procedures requiring credit analysts to receive training in the laws governing the misuse of material non-public information; defining the persons within the NRSRO with whom the credit analyst can share the information; prohibiting the credit analyst from disclosing the information to any other persons; and requiring the credit analyst to take steps to safeguard documents containing the information. An NRSRO that does not use management contacts as part of its methodology for determining credit ratings could prohibit credit analysts from contacting rated issuers or obligors.
Paragraph (b) of proposed Rule 17g-4 would require an NRSRO to implement specific procedures designed to prevent an associated person or member of an associated person's household from purchasing, selling, or otherwise benefiting from any transaction in securities or money market instruments when the person possesses or has access to material nonpublic information obtained for the purpose of developing a credit rating. This proposed rule recognizes the risk that individuals in possession of, or with access to, material nonpublic information about an issuer or obligor may trade securities or money market instruments on the information.
Paragraph (c) of proposed Rule 17g-4 would require an NRSRO to implement specific procedures designed to prevent the inappropriate dissemination within and outside the NRSRO of a credit rating action prior to making the action readily accessible. This provision recognizes that a credit rating action of an NRSRO that is not yet public may be material, non-public information. Consequently, an NRSRO should have policies designed to ensure that its pending credit rating actions are not disclosed in a manner that allows a person to trade on the information before the action is widely disseminated to the market. Once again, the Commission does not intend to prescribe specific procedures. However, as applicable to the business model of the NRSRO, these policies could include procedures designed to ensure that a credit rating action is issued in a way that makes it readily accessible to the market place, such as posting the credit rating or an announcement of the credit rating action on the NRSRO's Web site or through a news or information service used by market participants. The policies also could include procedures prohibiting credit analysts from selectively disclosing the pending action to persons outside the NRSRO and to persons inside the NRSRO who do not need to know of the pending action.
At the same time, the Commission understands that some credit rating agencies, as part of their methodologies for determining credit ratings, will discuss a proposed credit rating action with the management of the issuer or obligor being rated to solicit their views or provide an opportunity to appeal the decision. NRSROs engaging in this practice should have procedures designed to ensure that the discussions with the issuer or obligor do not lead to the selective disclosure of the information to persons other than those persons within the issuer or obligor who are authorized to receive the information.
The Commission requests comment on all aspects of this proposed rule, including whether the proposals could be more narrowly tailored and still meet the stated goals. The Commission also requests comment on whether other types of specific procedures should be
Section 15E(h)(1) of the Act requires an NRSRO to establish, maintain, and enforce policies and procedures reasonably designed, taking into consideration the nature of its business, to address and manage conflicts of interest.
Paragraph (a) of proposed Rule 17g-5 would make it unlawful for an NRSRO to have a conflict of interest relating to the issuance of a credit rating that is identified in paragraph (b) of the proposed rule
The types of conflicts identified in paragraph (b) of proposed Rule 17g-5 are those that a credit rating agency commonly faces, depending on its business model. Consequently, prohibiting them outright could adversely impact the ability of an NRSRO to operate as a credit rating agency. Nonetheless, the conflicts should be managed through policies and procedures and disclosed so that users of the credit ratings can assess whether the conflict impacts the NRSRO's judgment.
The first type of conflict identified in paragraph (b) of proposed Rule 17g-5 involves receiving compensation from a rated person for a service or product of the NRSRO or its affiliates.
The second type of conflict identified in paragraph (b) of proposed rule 17g-5 involves having an ownership interest (securities or otherwise) in an issuer or obligor subject to a credit rating of the NRSRO.
The third type of conflict identified in paragraph (b) of proposed rule 17g-5 involves receiving compensation from subscribers that use the credit ratings of the NRSRO for regulatory purposes.
The fourth type of conflict identified in paragraph (b) of proposed rule 17g-5 involves having an ownership interest in a subscriber that uses the NRSRO's credit ratings for regulatory purposes.
The fifth type of conflict identified in paragraph (b) of proposed rule 17g-5 involves having a business or personal
The sixth type of conflict identified in paragraph (b) of proposed rule 17g-5 involves being an officer or director of a rated issuer or obligor, underwriter of a rated issuer's securities, or subscriber that uses the NRSRO's credit ratings for regulatory purposes.
The seventh type of conflict identified in paragraph (b) of proposed rule 17g-5 would be any other type of conflict that the NRSRO identifies on proposed Form NRSRO in compliance with Section 15E(a)(1)(B)(vi) of the Exchange Act
Paragraph (c) of proposed Rule 17g-5 would specifically prohibit four types of conflicts of interest. The Commission preliminarily believes that prohibiting such conflicts of interest would be appropriate in the public interest and for the protection of investors.
The first proposed prohibition would make it unlawful for an NRSRO to have a conflict relating to the issuance of a credit rating where the person soliciting the credit rating was the source of 10% or more of the total net revenue of the NRSRO and its affiliates in the most recently ended fiscal year.
The second proposed prohibition would make it unlawful for an NRSRO to have a conflict relating to the issuance of a credit rating where the NRSRO, a credit analyst responsible for the credit rating, or a person associated with the NRSRO responsible for approving the credit rating, owns securities of, or has any other ownership interest in the rated person, or is a borrower or lender with respect to the rated person.
The third proposed prohibition would make it unlawful for an NRSRO to have a conflict relating to the issuance of a credit rating where the rated entity is a person associated with the NRSRO.
The fourth proposed prohibition would make it unlawful for an NRSRO to have a conflict relating to the issuance of a credit rating where the credit analyst responsible for the credit rating, or a person associated with the NRSRO responsible for approving the credit rating, also is an officer or director of the person that is the subject of the credit rating.
The Commission requests comment on all aspects of proposed Rule 17g-5, including whether the proposals could be more narrowly tailored and still meet the stated goals. The Commission also requests comment on whether paragraph (b) of proposed Rule 17g-5 captures all the types of conflicts that arise from the activities of a credit rating agency. Comment also is sought on whether proposed Rule 17g-5 should contain materiality thresholds insomuch as some conflicts may be inconsequential. The Commission seeks comment on whether the focus of the proposal on the “type” of conflict of interest would appropriately capture the conflicts that arise from the business of a credit rating agency. In addition, the Commission requests comment on the prohibited conflicts and whether these conflicts should be permitted if a credit rating agency discloses them and has procedures in place to manage such conflicts. If so, what specific disclosures should be required? Alternatively, should the rule prohibit other types of
Section 15E(i)(1) of the Exchange Act
Section 15E(i)(1)(A) of the Exchange Act provides that the Commission shall prohibit the following practice if the Commission determines it is unfair, coercive, or abusive:
Conditioning or threatening to condition the issuance of a credit rating on the purchase by the obligor or an affiliate thereof of other services or products, including pre-credit rating assessment products of the nationally recognized statistical rating organization or any person associated with such nationally recognized statistical rating organization[.]
Credit ratings play an important role in financial markets. Market participants use them in making financial decisions whether to buy or sell debt securities and extend credit to rated entities. Moreover, credit ratings of NRSROs are used in federal and state laws and regulations to establish limits or confer exemptions or privileges. Consequently, an entity may benefit from having an NRSRO credit rating because it makes its securities more marketable or the rating would qualify the entity for an exemption or privilege in one of these rules or statutes or make holding the entity's debt securities or transacting with the entity more attractive to other regulated entities. An NRSRO could abuse this incentive by using it to coerce an issuer or obligor to purchase services from the NRSRO or its affiliates. Accordingly, the Commission is proposing to prohibit this potential practice.
An NRSRO would be allowed to condition the issuance and maintenance of a credit rating on the issuer or obligor paying for the service of determining and monitoring the credit rating. As noted above, this is a longstanding business model in the credit rating industry.
Section 15E(i)(1)(C) of the Exchange Act provides that the Commission shall prohibit the following practices if the Commissions determines they are unfair, coercive, or abusive:
Modifying or threatening to modify a credit rating or otherwise departing from systematic procedures and methodologies in determining credit ratings, based on whether the obligor, or an affiliate of the obligor, purchases or will purchase the credit rating or any other service or product of the nationally recognized statistical rating organization or any person associated with such organization.
The practice proposed to be prohibited in this paragraph is distinguishable from the practice proposed to be prohibited in Paragraph (a)(1). Paragraph (a)(1) addresses the situation where an NRSRO conditions the issuance of a credit rating on the purchase of another service or product. Paragraph (a)(2) addresses the situation where an NRSRO conditions the conclusion reached in the credit rating on the purchase of the credit rating or
Paragraph (a)(3) of proposed Rule 17g-6 would prohibit an NRSRO from modifying, or offering or threatening to modify, a credit rating in a manner contrary to its procedures for modifying a credit rating based on whether the rated person, or an affiliate of the rated person, purchases or will purchase the credit rating or any other service or product of the NRSRO and its affiliates. The prohibition in paragraph (a)(2) of proposed Rule 17g-6, as discussed, would apply to threats or promises with respect to the issuance of a credit rating. Paragraph (a)(3) would extend this prohibition to threats or promises with respect to changing an existing credit rating.
The potential for an NRSRO to use the threat of a lower or the promise of a higher credit rating to obtain business arises from the fact that an entity's cost of credit and, in some cases, ability to obtain credit, generally depends on its credit rating. Entities with lower credit ratings must pay higher interest rates to borrow funds or issue debt. In some cases, a low credit rating could block an entity's access to credit. Thus, it is in a borrower's economic interest to have a high credit rating. This creates the potential for an NRSRO to have inappropriate leverage over an issuer or obligor. The NRSRO could use this leverage to obtain business by threatening to issue or modify a credit rating in a manner that results in a lower rating than would have resulted from using its established methodologies. The NRSRO also could issue a lower rating or lower an existing rating to punish an issuer or obligor for not purchasing the credit rating or another service or product of the NRSRO and its affiliates. Conversely, the NRSRO could promise to issue or modify a credit rating in a manner that results in a higher rating than would have resulted from using its established methodologies as a reward for purchasing the credit rating or other services or products. Proposed Rule 17g-6 would provide a check on the potential inappropriate influence an NRSRO may have over issuers and obligors by prohibiting an NRSRO from using this leverage to coerce an issuer or obligor into purchasing a credit rating or other services and products of the NRSRO and its affiliates.
A second reason to prohibit these practices is that they would lead to credit ratings that could mislead the marketplace and undermine the regulatory use of NRSRO credit ratings. An NRSRO that follows through on a threat to issue a low credit rating or promise to issue a high credit rating would be issuing a credit rating that does not accurately reflect the credit rating agency's true assessment of the creditworthiness of the issuer or obligor. The credibility and reliability of an NRSRO and its credit ratings depends on the NRSRO developing and implementing sound methodologies for determining credit ratings and following those methodologies. The fact that an issuer or obligor agrees or refuses to purchase a credit rating or other service or product from the NRSRO and its affiliates should have no bearing on the NRSRO's credit assessment of the issuer or obligor.
Section 15E(i)(1)(B) of the Exchange Act provides that the Commission by rule shall prohibit the following practices if the Commission determines they are unfair, coercive, or abusive:
Lowering or threatening to lower a credit rating on, or refusing to rate, securities or money market instruments issued by an asset pool or as part of any asset-backed or mortgage-backed securities transaction, unless a portion of the assets within such pool or part of such transaction, as applicable, also is rated by the nationally recognized statistical rating organization[.]
In explaining this statutory provision, the Senate Report stated that “there may be instances when a rating agency may refuse to rate securities or money market instruments for reasons that are not intended to be anti-competitive.” The Senate Report further stated that “the Commission * * * should prohibit only those ratings refusals that occur as part of unfair, coercive or abusive conduct.”
This provision in the statute is seeking to address a practice, sometimes referred to as “notching,” where a credit rating agency refuses to rate securities or money market instruments issued by an asset pool or as part of any asset-backed or mortgage-backed securities transaction (collectively, a “structured product”) or discounts the rating for a structured product because it has not rated all of the underlying assets. Critics of this practice argue that it forces issuers of structured products to obtain credit ratings from the same credit rating agencies that rated the underlying assets.
The Commission preliminarily determines that it would be unfair, coercive, or abusive for an NRSRO to issue or threaten to issue a lower credit rating, lower or threaten to lower an existing credit rating, refuse to issue a credit rating, or to withdraw a credit rating with respect to a structured product unless a portion of the assets underlying the structured product also are rated by the NRSRO. Consequently, the Commission proposes to prohibit these practices in paragraph (a)(4) of Proposed Rule 17g-6.
At the same time, the Commission believes there could be legitimate reasons for an NRSRO to refuse to rate a structured product where the NRSRO has not rated the underlying assets. Therefore, the Commission is proposing that an NRSRO could refuse to initiate a rating or withdraw an existing rating in certain circumstances. This exception only would apply to the prohibition in paragraph (a)(4) against refusing to rate the security or withdrawing a rating. It would not apply to issuing or threatening to issue a lower credit rating or lowering or threatening to lower an existing credit rating.
Under the exception to the prohibition, an NRSRO could refuse to issue the rating or withdraw the rating if the NRSRO has rated less than 85% of the market value of the assets underlying the structured product. This is designed to address the concern that an NRSRO when assessing the credit worthiness of the structured product would be forced to issue a rating either when a portion of the underlying assets are not rated or when the underlying assets have been rated by another credit rating agency. If the underlying assets were unrated, the NRSRO may not have sufficient information for issuing a rating on the structured product. In cases where the underlying assets were rated by another credit rating agency, the other credit rating agency may have used different methodologies to assess the creditworthiness of the asset and may have determined a credit rating that is different than the credit rating the NRSRO would issue, if it had rated the asset. The Commission preliminarily does not believe it would be appropriate to require the NRSRO to issue or maintain a rating when the NRSRO has rated less than 85% of the market value of the underlying assets.
Finally, the Commission is proposing to prohibit a practice that is not specifically identified in Section 15E(i)(1) of the Exchange Act
It may be appropriate for an NRSRO that operates under a business model where issuers or obligors pay for the credit ratings to issue a credit rating that the issuer or obligor has not requested. For example, an NRSRO may want to have an active credit rating for every major issuer in a given industry.
It would not be appropriate, however, to determine an unsolicited credit rating and then to contact the issuer or obligor to solicit them to pay for the rating.
The Commission requests comment on all aspects of proposed Rule 17g-6, particularly on whether the proposed rule's requirements that prohibit certain acts and practices could be more narrowly tailored and still meet the stated goals. The Commission also requests comment on whether there are any other unfair, coercive, or abusive practices which should be prohibited under the proposed rules, or whether any of the practices proposed to be prohibited should not be subject to prohibition. The Commission further requests comment on whether any of the proposed prohibitions should be modified. With respect to the exception to the prohibition in paragraph (a)(4) of the Rule 17g-6, the Commission requests comment on whether the proposed exception permitting an NRSRO to refuse to issue a credit rating or withdraw a credit rating of structured product when it has not rated all the underlying assets should be modified or deleted and whether the 85% threshold in that exception should be higher or lower.
Certain provisions of the proposed rules contain a “collection of information” within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
(1) Rule 17g-1, Application for registration as a nationally recognized statistical rating agency; Form NRSRO and the Instructions for Form NRSRO;
(2) Rule 17g-2, Records to be made and retained by national recognized statistical rating organizations;
(3) Rule 17g-3, Annual audited financial statements to be furnished by nationally recognized statistical rating organizations;
(4) Rule 17g-4, Prevention of Misuse of Material Nonpublic Information; and
(5) Rule 17g-6, Prohibited Acts and Practices.
The Commission is proposing for comment rules to implement registration, recordkeeping, financial reporting, and oversight rules under the Credit Rating Agency Reform Act of 2006 (the “Act”).
In summary, the proposed rules would require an NRSRO to: (1) Complete an initial application for registration on Form NRSRO;
Proposed Rules 17g-1 through 17g-6, Form NRSRO, and the Instructions for Form NRSRO, would create a framework for Commission oversight of NRSROs. The collections of information in the proposed rules are designed to allow the Commission to determine whether an entity should be registered as an NRSRO. Further, they would assist the Commission in effectively monitoring, through its examination function, whether an NRSRO is conducting its activities in accordance with Section 15E of the Exchange Act
The number of respondents that would be subject to the proposed rules would depend, in part, on the number of entities that meet the statutory requirements to be eligible for registration. The Act, by adding definitions to Section 3 of the Exchange Act,
Section 3 of the Exchange Act also defines the term “credit rating agency” as, in pertinent part, any person engaged in the business of issuing credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee; employing either a quantitative or qualitative model, or both, to determine credit ratings; and receiving fees from either issuers, investors, or other market participants, or a combination of these persons.
These definitions create threshold eligibility requirements with respect to the entities that would be eligible to apply for registration as an NRSRO. Because NRSROs have not previously been supervised as such, and because credit rating agencies include publicly and privately held companies located throughout the world, it is difficult to estimate the number of entities that would be eligible to register as NRSROs.
In 2000, a working group of the Basel Committee on Banking Supervision
The Commission believes the estimates in the 2000
In addition, the Commission cannot estimate with certitude how many credit rating agencies ultimately would opt to be registered as NRSROs. Section 15E(a)(1) of the Exchange Act makes registration voluntary.
For all these reasons, the Commission estimates that the number of credit rating agencies applying for registration would be larger than the sum of the number of credit rating agencies currently identified as NRSROs plus the handful of entities with pending requests for no-action letters. At the same time, the Commission does not believe that all of the 57 credit rating agencies identified by
The Commission requests comment on this estimate and whether more or fewer credit rating agencies would be registered as NRSROs. The Commission also requests comment on whether the sources of industry information used in arriving at the estimate (the
As discussed in further detail below, the Commission estimates the total recordkeeping burden resulting from these proposed rules would be approximately 16,021 hours
The total annual and one-time hour burden estimates described below are averages across all types of expected NRSROs. The size and complexity of NRSROs would range from small entities to entities that are part of complex global organizations employing thousands of credit analysts. The Commission believes that larger NRSROs generally would have established written policies and procedures and recordkeeping systems that would comply with a substantial portion of the requirements in the proposed rules. For example, many of the requirements in the proposed rules are consistent with the IOSCO Code, which a number of credit rating agencies have adopted. These firms might only be required to augment or modify existing policies and procedures and recordkeeping systems to comply with the proposed rules.
Some smaller entities also would have implemented the policies, procedures, and recordkeeping systems necessary to comply with the proposed rules. Moreover, given their smaller size and simpler structure, smaller entities would require significantly fewer hours to comply with a substantial portion of the requirements in the proposed rules. Consequently, the burden hour estimates represent the average time across all NRSROs (regardless of size) and taking into account that many firms would only need to augment existing policies, procedures, and recordkeeping systems and processes to comply with the proposed rules. The Commission further notes that, given the significant variance in size between the largest credit rating agencies and the smaller firms, the burden estimates, as averages across all NRSROs, are skewed higher by the largest firms. Furthermore, because the Commission is proposing to require additional information in Form NRSRO beyond that prescribed in Section 15E(1)(B) of the Exchange Act,
The Commission seeks comment on whether these factors have been reasonably incorporated into the burden estimates.
Section 15E(a)(1) of the Exchange Act requires a credit rating agency applying for registration with the Commission to furnish an application containing certain specified information and such other information as the Commission prescribes as necessary or appropriate in
The Commission also anticipates that an NRSRO likely would engage outside counsel to assist it in the process of completing and submitting a Form NRSRO. The amount of time an outside attorney would spend on this work would depend on the size and complexity of the NRSRO. Therefore, the Commission estimates that, on average, an outside counsel would spend approximately 40 hours assisting an NRSRO in preparing its application for registration for a one-time aggregate burden to the industry of 1,200 hours. The Commission further estimates that this work would be split between a partner and associate, with an associate performing a majority of the work. Therefore, the Commission estimates that the average hourly cost for an outside counsel would be approximately $400 per hour. For reasons, the Commission estimates that the average one-time cost to an NRSRO would be $16,000
As noted, proposed Rule 17g-1 would require a credit rating agency to provide the Commission with a written notice if it intends to withdraw its application prior to final Commission action. Based on staff experience, the Commission estimates that one credit rating agency per year would withdraw a Form NRSRO prior to final Commission action on the application and, consequently, would furnish a notice of its intent to withdraw the application. Based on the Commission's current estimates for a broker-dealer to file a notice with the Commission under Rule 17a-11, the Commission estimates the average burden to an NRSRO to furnish the notice of withdrawal would be one hour.
Proposed Rule 17g-1 also would require that an NRSRO registered for fewer than the five categories of credit ratings listed in Section 3(a)(62)(B) of the Exchange Act would apply to be registered for an additional category by furnishing an amendment on Form NRSRO.
The Commission further estimates based on staff experience that approximately five of the 30 credit rating agencies expected to register with the Commission would apply to register for additional categories of credit ratings within the first year. The Commission believes that almost all NRSROs would initially apply to register for the first three categories of credit ratings identified in the definition of NRSRO: (1) Financial institutions, brokers, or dealers; (2) insurance companies; and (3) corporate issuers.
For these reasons, the Commission anticipates that a number of NRSROs may register for less than all five categories of credit ratings. Moreover, some of these NRSROs , in time, may develop their businesses to include issuing credit ratings of a category for which they are not initially registered. Based on staff experience, the Commission estimates that approximately five of the estimated 30 NRSROs would apply to add another category of credit ratings to their registration within the first year. Therefore, given the 25 hour per NRSRO average burden estimate, the total aggregate one-time burden to the industry for filing the amended Form NRSRO to change the scope of registration would be approximately 125 hours.
Section 15E(b)(1) of the Exchange Act requires an NRSRO to promptly amend its application for registration if any information or document provided in the application becomes materially inaccurate.
Section 15E(b)(2) of the Exchange Act requires an NRSRO to furnish an annual certification.
Finally, section 15E(a)(3) of the Exchange Act requires an NRSRO to make the information and documents submitted in its application publicly available on its Web site or through another comparable readily accessible means.
Section 17(a)(1) of the Exchange Act (as amended by the Act)
The Commission also estimates that an NRSRO may need to purchase recordkeeping system software to establish a recordkeeping system in conformance with the proposed rule. The Commission estimates that the cost of the software would vary based on the size and complexity of the NRSRO. Also, the Commission estimates that some NRSRO's would not need such software because they already have adequate recordkeeping systems or, given their small size, such software would not be necessary. Based on these estimates, the Commission estimates that the average cost for recordkeeping software across all NRSROs would be approximately $1000 per firm. Therefore, the one-time cost to the industry would be $30,000.
Additionally, the Commission estimates that the average annual amount of time that an NRSRO would spend to make and maintain these records would be approximately 254 hours per year. The estimate for annual hours is based on the Commission's present estimate the amount of time it would take a broker-dealer to comply with the recordkeeping rule, Rule 17a-4.
Proposed Rule 17g-2 also would require that an NRSRO that uses a third-party record custodian furnish the Commission with an undertaking from the custodian. Based on staff experience, the Commission estimates that approximately five NRSROs would file this undertaking on a one-time basis. Proposed Rule 17g-2 also would require that a non-resident NRSRO provide an undertaking to the Commission. The Commission estimates, based on staff experience, approximately five non-resident NRSROs would provide this undertaking to the Commission. The Commission estimates, based on staff experience, it would take an NRSRO approximately 10 hours to complete an undertaking prior to furnishing it to the Commission.
Section 15E(k) of the Exchange Act requires an NRSRO to furnish to the Commission, on a confidential basis and at intervals determined by the Commission, such financial statements and information concerning its financial condition that the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Proposed Rule 17g-3 would implement this statutory provision by requiring an NRSRO to furnish audited annual financial statements to the Commission, including certain specified schedules.
To comply with proposed Rule 17g-3, an NRSRO would need to engage the services of independent public accountant. The cost of hiring an accountant would vary substantially based on the size and complexity of the NRSRO. For example, the Commission notes, based on staff experience, that the annual audit costs of a small broker-dealer generally range from $3,000 to $5,000 a year. The Commission estimates that the annual audit costs for a small NRSRO would be comparable. The costs for a large NRSRO would be much greater. However, many of these firms already are audited by a public accountant for other regulatory purposes. These firms, however, may incur some incremental costs, given the schedules in proposed Rule 17g-3. For these reasons, the Commission estimates that the average annual cost across all NRSROs to engage the services of an independent public accountant would be approximately $15,000. Therefore, the annual cost to the industry would be $450,000.
Section 15E(g)(1) of the Exchange Act
The Commission expects that most credit rating agencies already have procedures in place to address the specific misuses of material nonpublic information identified in proposed Rule 17g-4.
Proposed Rule 17g-6(b) would require an NRSRO using the exception in the rule to document in writing the reasons for refusing to issue a credit rating or withdrawing a credit rating in connection with a mortgaged-backed or asset-backed security. Based on staff experience, the Commission estimates that each NRSRO would need to document approximately five refusals per year and that it would take approximately two hours to create the record. The two hour estimate is based on staff experience and on the current one-hour estimate for a broker-dealer to file the notice under Rule 17a-11. The Commission has adjusted this estimate upwards to two hours because the Commission believes that an NRSRO would take longer to explain the applicability of the safe harbor than to explain the reasons for the notices required under Rule 17a-11. For these reasons, the Commission estimates that the total annual hour burden for this proposed rule would be 300 hours per year.
These recordkeeping and notice requirements are mandatory, where applicable.
Pursuant to section 15E(a)(1)(B) of the Exchange Act, certain information collected in Form NRSRO required under Rule 17g-1(a) would not be confidential. However, other information would be confidential under section 15E(a)(1)(B) of the Exchange Act and proposed Rule 17g-1(b). The Commission would keep this information confidential to the extent permitted by law. The books and records information collected under proposed Rules 17g-2, 17g-4, and 17g-6 would be stored by the NRSRO and made available to the Commission and its representatives as required in connection with examinations, investigations, and enforcement proceedings.
The information collected under Rule 17g-3 (the annual audited financial statements) would be generated from the internal records of the NRSRO. Pursuant to Section 15E(k) of the Exchange Act, the annual audit would be furnished to the Commission on a confidential basis, to the extent permitted by law.
Paragraph (c) of proposed Rule 17g-2 would require an NRSRO to retain the records for at least three years, except records relating to customers would need to be retained until three years after the business relationship with the customer ended.
The Commission requests comment on the proposed collections of information in order to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information would have practical utility; (2) evaluate the accuracy of the Commission's estimate of the burden of the proposed collection of information; (3) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; (4) evaluate whether there are ways to minimize the burden of the collection of information on those who respond, including through the use of automated collection techniques or other forms of information technology; and (5) evaluate whether the proposed rules would have any effects on any other collection of information not previously identified in this section.
Persons who desire to submit comments on the collection of information requirements should direct
The Commission is sensitive to the costs and benefits that result from its rules. The Commission has identified certain costs and benefits of the proposed rules and requests comment on all aspects of this cost-benefit analysis, including identification and assessment of any costs and benefits not discussed in the analysis.
The purposes of the Credit Rating Agency Reform Act of 2006 (the “Act”)
To these ends, the Act establishes—through statutory provisions and the grant of Commission rulemaking authority—a regulatory program for credit rating agencies opting to have their credit ratings qualify for purposes of laws and rules using the term “NRSRO.” Specifically, the Act sets out a voluntary mechanism for credit rating agencies to register with the Commission as an NRSRO.
The rules proposed by the Commission under the Act would be issued pursuant to specific grants of rulemaking authority in the Act. They are designed to further the goals of the Act. A primary purpose of the Act is to foster “competition in the credit rating agency business.”
In addition, the Act requires NRSROs to make their credit ratings and information about themselves available to the public. Part of the definition of “credit rating agency” in the Act is that the entity must be in the business of issuing credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee.
In addition, the proposed rules implement provisions of the Act that are designed to improve the integrity of NRSROs. For example, the registration of a credit rating agency as an NRSRO would allow the Commission to conduct regular examinations of the credit rating agency to evaluate compliance with the regulatory scheme set forth in Section 15E of the Exchange Act
Proposed Rule 17g-1 prescribes a process for a credit rating agency to register with the Commission as an NRSRO.
Proposed Rule 17g-2 would implement the Commission's recordkeeping and rulemaking authority under Section 17(a) of the Exchange Act
Section 15E(k) of the Exchange Act requires an NRSRO to furnish to the Commission, on a confidential basis and at intervals determined by the Commission, such financial statements and information concerning its financial condition that the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Section 15E(g)(1) of the Exchange Act
Proposed Rule 17g-5 would implement Section 15E(h)(2) of the Exchange Act
Proposed Rule 17g-6 would prohibit an NRSRO from engaging in certain unfair, abusive, or coercive acts or practices, including practices with
We request comment on available metrics to quantify these benefits and any other benefits the commenter may identify, including the identification of sources of empirical data that could be used for such metrics.
The Act requires that the rules and regulations that the Commission may prescribe under the Act “shall be narrowly tailored” to meet its requirements.
The cost of compliance to a given NRSRO would depend on its size and the complexity of its business activities. As discussed above, the size and complexity of credit rating agencies varies significantly. Therefore, it is difficult to quantify a cost per NRSRO. Instead, the Commission is providing estimates of the average cost per NRSRO taking into consideration the range in size and complexity of NRSROs and the fact that many already may have established policies, procedures and recordkeeping systems and processes that would comply substantially with the proposed requirements.
The Commission believes that larger NRSROs generally would already have established written policies and procedures and recordkeeping systems that would comply with a substantial portion of the requirements in the proposed rules. Many of the requirements in the proposed rules are consistent with the IOSCO Code, which a number of credit rating agencies (including the largest) have adopted. These firms would need to augment or modify existing policies and procedures and recordkeeping systems to comply with the proposed rules (rather than establish new ones). Some smaller credit rating agencies also have implemented the policies, procedures, and recordkeeping systems necessary to comply with the proposed rules. Moreover, given their smaller size and simpler structure, smaller entities would require less effort and incur less cost to comply with a substantial portion of the requirements in these proposed rules.
For these reasons, the cost estimates represent the average cost across all NRSROs (regardless of size) and take into account that many firms would only need to augment existing policies, procedures and recordkeeping systems and processes to come into compliance with the proposed rules. Furthermore, as discussed with respect to the Paperwork Reduction Act of 1995 (“PRA”),
Given the estimates set forth below, the Commission estimates that the total one-time estimated cost to NRSROs resulting from these rule proposals would be approximately $4,936,325
Section 15E(a)(1) of the Exchange Act requires a credit rating agency applying for registration with the Commission to furnish an application containing certain specified information and such other information as the Commission prescribes as necessary or appropriate in the public interest or for the protection of investors.
NRSROs would incur costs to register under Section 15E of the Exchange Act and proposed Rule 17g-1 thereunder.
Also, as discussed with respect to the PRA, the Commission also anticipates that an NRSRO likely would engage outside counsel to assist it in the process of completing and submitting a Form NRSRO. The amount of time an outside attorney would spend on this work would depend on the size and complexity of the NRSRO. Therefore, the Commission estimates that, on average, an outside counsel would spend approximately 40 hours assisting an NRSRO in preparing its application for registration. The Commission further estimates that this work would be split between a partner and associate, with an associate performing a majority of the work. Therefore, the Commission estimates that the average hourly cost for an outside counsel would be approximately $400 per hour. For these reasons, the Commission estimates that the average one-time cost to an NRSRO would be $16,000
Under proposed Rule 17g-1, an NRSRO applying to be registered for an additional category of credit ratings would need to file an amended Form NRSRO with the Commission. As discussed with respect to the PRA, the Commission estimates, on average, an NRSRO would spend 25 hours completing and furnishing a Form NRSRO for this purpose. The Commission also estimates with respect to the PRA that five of the 30 NRSROs would apply to register for an additional
Furthermore, as discussed above with respect to the PRA, the Commission also estimates that an NRSRO may need to purchase recordkeeping system software to establish a recordkeeping system in conformance with the proposed rule. The Commission estimates that the cost of the software would vary based on the size and complexity of the NRSRO. Also, the Commission estimates that some NRSRO's would not need such software because they already have adequate recordkeeping systems or, given their small size, such software would not be necessary. Based on these estimates, the Commission estimates that the average cost for recordkeeping software across all NRSROs would be approximately $1000 per firm. Therefore, the one-time cost to the industry would be $30,000.
Section 15E(b)(1) of the Exchange Act requires an NRSRO to promptly amend its application for registration if any information or document provided in the application becomes materially inaccurate.
Section 15E(b)(2) of the Exchange Act requires an NRSRO to furnish an annual certification.
Section 15E(a)(3) of the Exchange Act requires an NRSRO to make certain information and documents submitted in its application publicly available on its Web site or through another comparable readily accessible means.
The Commission believes the requirements in proposed Rule 17g-1 to provide notices when a credit rating agency withdraws its application or an NRSRO withdraws its registration would result in
As noted above, we request comment on these proposed cost estimates. We also request comment on whether there would be costs in addition to those identified above, such as costs arising from systems changes. We also request comment on whether these proposals would impose costs on other market participants, including persons who use credit ratings to make investment decisions or for regulatory purposes, and persons who purchase services and products from NRSROs. Commenters should identify the metrics and sources of any empirical data that support their costs estimates.
Section 17(a)(1) of the Exchange Act
As discussed with respect to the PRA, the Commission estimates that an NRSRO, on average, would spend approximately 300 hours on a one-time basis to establish a recordkeeping system and 254 hours each year updating its books and records. For these reasons, the Commission estimates that an NRSRO would incur an average one-time cost of $61,500 and an average annual cost of $52,070.
As noted above, we request comment on these proposed cost estimates. We also request comment on whether there would be costs in addition to those
Section 15E(k) of the Exchange Act requires an NRSRO to furnish to the Commission, on a confidential basis and at intervals determined by the Commission, such financial statements and information concerning its financial condition that the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Proposed Rule 17g-3 would implement this statutory provision by requiring an NRSRO to furnish audited annual financial statements to the Commission, including certain specified schedules.
As noted above, the average one-time and annual costs to NRSROs would vary widely depending on the size and complexity of the NRSRO. Moreover, some large credit rating agencies already prepare audited financial statements in accordance with other regulatory requirements. Nonetheless, these credit rating agencies, if they become NRSROs, may need to make changes to their accounting systems to comply with proposed annual audit requirements in Rule 17g-3. The Commission believes these costs would vary, depending on the size and complexity of the NRSRO, and seeks comment on the costs that would be incurred to make changes to their accounting systems.
Furthermore, as discussed above with respect to the PRA, an NRSRO would need to engage the services of an independent public accountant to comply with proposed Rule 17g-3. The cost of hiring an accountant would vary substantially based on the size and complexity of the NRSRO. As noted above, based on staff experience, the annual audit costs of a small broker-dealer generally range from $3,000 to $5,000 a year. As the Commission estimated above, the annual audit costs for a small NRSRO would likely be comparable to the costs incurred by a small broker-dealer. The costs for a large NRSRO would be much greater. However, many of these firms already are audited by a public accountant for other regulatory purposes. These firms, however, may incur some incremental costs, given the schedules in proposed Rule 17g-3. For these reasons, the Commission estimates that the average annual cost across all NRSROs to engage the services of an independent public accountant would be approximately $15,000. Therefore, the annual cost to the industry would be $450,000.
As noted above, we request comment on these proposed cost estimates. We also request comment on whether there would be costs in addition to those identified above, such as costs arising from systems changes. We also request comment on whether these proposals would impose costs on other market participants, including persons who use credit ratings to make investment decisions or for regulatory purposes, and persons who purchase services and products from NRSROs. Commenters should identify the metrics and sources of any empirical data that support their cost estimates.
Section 15E(g)(1) of the Exchange Act
As discussed above with respect to PRA, the Commission estimates that it would take approximately 50 hours for an NRSRO to establish procedures in conformance with the proposed rule and that there would be 30 NRSROs. For these reasons, the Commission estimates that the average one-time cost to an NRSRO would be $10,250
As noted above, we request comment on these proposed cost estimates. We also request comment on whether there would be costs in addition to those identified above, such as costs arising from systems changes and restructuring business practices. We also request comment on whether these proposals would impose costs on other market participants, including persons who use credit ratings to make investment decisions or for regulatory purposes, and persons who purchase services and products from NRSROs. Commenters should identify the metrics and sources of any empirical data that support their costs estimates.
Proposed Rules 17g-5 and 17g-6 are conduct rules that would require NRSROs respectively to avoid certain conflicts of interest and unfair, abusive or coercive acts and practices and, consequently, do not require an NRSRO to make records or reports or create recordkeeping or accounting systems.
Proposed Rules 17g-5 and 17g-6 do prohibit respectively certain conflicts of interest and unfair, coercive and abusive acts and practices. The Commission believes that most entities that would become NRSROs do not engage in these types of conflicts, acts and practices. Therefore, the Commission estimates that these proposed rules generally would impose
Under Section 3(f) of the Exchange Act,
The Commission's preliminary view is that the proposed rules should promote efficiency, competition, and capital formation. As discussed above with respect to the costs and benefits of the proposed rules, the primary purpose of the Credit Rating Agency Reform Act of 2006 (the “Act”)
In addition, the Act requires NRSROs to make their credit ratings and information about themselves available to the public. Part of the definition of “credit rating agency” in the Act is that the entity must be in the business of issuing credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee.
In addition, the proposed rules implement provisions of the Act that are designed to improve the integrity of NRSROs. For example, the registration of a credit rating agency as an NRSRO would allow the Commission to conduct regular examinations of the credit rating agency to evaluate compliance with the regulatory scheme set forth in Section 15E of the Exchange Act and the proposed rules and would subject an NRSRO to disclosure, recordkeeping, and annual audit requirements, as well as requirements regarding the prevention of misuse of material, nonpublic information, the management of conflicts of interest, and certain prohibited acts and practices. Increased confidence in the integrity of NRSROs and the credit ratings they issue could promote participation in the securities markets. Better quality ratings could also reduce the likelihood of an unexpected collapse of a rated issuer or obligor, reducing risks to individual investors and to the financial markets. In addition to improving the quality of credit ratings, increased oversight of NRSROs could increase the accountability of an NRSRO to its subscribers, investors, and other persons who rely on the credibility and objectivity of credit ratings in making an investment decision.
The Commission solicits comment on these matters with respect to the proposed rules. In particular, the Commission solicits comment on whether the proposed rules would have an adverse effect on competition that is neither necessary nor appropriate in furtherance of the purposes of the Exchange Act. In addition, comment is sought on whether the proposed rules, if adopted, would promote efficiency, competition, and capital formation. Commenters are requested to provide empirical data and other factual support for their views, if possible.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, or “SBREFA,”
• An annual effect on the economy of $100 million or more
• A major increase in costs or prices for consumers or individual industries; or
• A significant adverse effect on competition, investment, or innovation.
If a rule is “major,” its effectiveness will generally be delayed for 60 days pending Congressional review. The Commission requests comment on the potential impact of each of the proposed rules on the economy on an annual basis. Commenters are requested to provide empirical data and other factual support for their view to the extent possible.
The Commission has prepared the following Initial Regulatory Flexibility Analysis (IRFA), in accordance with the provisions of the Regulatory Flexibility Act,
The Commission encourages comments with respect to any aspect of this IRFA, including comments with respect to the number of small entities that may be affected by the proposed rules. Comments should specify the costs of compliance with the proposed rules and suggest alternatives that would accomplish the goals of the rules. Comments will be considered in determining whether a Final Regulatory Flexibility Analysis is required and will be placed in the same public file as comments on the proposed rules. Comments should be submitted to the Commission at the addresses previously indicated.
The proposed rules would implement specific provisions of the Credit Rating Agency Reform Act of 2006 (the “Act”).
The proposed rules would implement specific provisions of the Act. The objectives of the Act are “to improve ratings quality for the protection of investors and in the public interest by fostering accountability, transparency, and competition in the credit rating industry.”
Pursuant to the Exchange Act
Paragraph (a) of Rule 0-10 provides that for purposes of the Regulatory Flexibility Act, a small entity “[w]hen used with reference to an ‘issuer’ or a ‘person’ other than an investment company” means “an ‘issuer’ or ‘person’ that, on the last day of its most recent fiscal year, had total assets of $5 million or less.”
As noted above, the Commission believes that approximately 30 credit rating agencies would be registered as an NRSRO. Moreover, as also noted above, the Senate Report accompanying the Act states that the two largest credit rating agencies have about 80% of the market share as measured by revenues. The Senate Report also states that these two firms rate more than 99% of the debt obligations and preferred stock issues publicly traded in the United States. Given these figures, the Commission believes that the majority of the credit rating agencies registered with the Commission would be “small” entities.
A credit rating agency seeking to apply to the Commission for registration as a nationally recognized statistical rating organization would apply using proposed Form NRSRO.
After registration, the credit rating agency (now an NRSRO under the Act) would generally need to promptly update the public information on its Form NRSRO whenever an item or exhibit becomes materially inaccurate. To update information, the NRSRO would furnish the Commission with an amendment using Form NRSRO. In addition, the NRSRO would need to furnish the Commission with an annual certification on Form NRSRO.
NRSROs would also be subject to a recordkeeping rule.
On an annual fiscal year basis, an NRSRO would be required to furnish the Commission with audited financial statements.
Finally, all NRSROs would be subject to requirements designed to protect their impartiality with respect to issuing credit ratings. First, they would be required to establish, maintain and enforce specific written policies designed to prevent the misuse of material non-public information.
The Commission believes that there are no federal rules that duplicate, overlap, or conflict with the proposed rules.
Pursuant to section 3(a) of the RFA,
The Commission does not believe it is necessary or appropriate to establish different compliance or reporting requirements or timetables; clarify, consolidate, or simplify compliance and reporting requirements under the rule for small entities; or exempt small entities from coverage of the rule, or any part of the rule. The Act and the proposed rules establish a voluntary program of registration and supervision that allows NRSROs the flexibility to develop procedures tailored to their specific organizational structure and business models. The Commission also does not believe that it is necessary to consider whether small entities should be permitted to use performance rather than design standards to comply with the proposed rules as the rules already propose performance standards and do not dictate for entities of any size any particular design standards that must be employed to achieve the objectives of the proposed rules.
The Commission encourages the submission of comments to any aspect of this portion of the IRFA. Comments should specify costs of compliance with the proposed rules and suggest alternatives that would accomplish the objective of the proposed rules.
The Commission specifically requests comment on the estimate that 30 credit rating agencies would be registered as NRSROs with the Commission, and that 20 of those 30 NRSROs would be small entities for purposes of the Regulatory Flexibility Act.
The Commission is proposing Form NRSRO and Rules 17g-1, 17g-2, 17g-3, 17g-4, 17g-5 and 17g-6 under the Exchange Act pursuant to the authority conferred by the Exchange Act, including Sections 3(b), 15E, 17, 23(a) and 36.
Brokers, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, the Commission hereby proposes that Title 17, Chapter II of the Code of Federal Regulation be amended as follows.
1. The authority for Part 240 continues to read in part as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-l, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201
2. Sections 240.17g-1 through 240.17g-6 are added to read as follows:
(a)
(b)
(2) The applicant may withdraw an application prior to the date of a Commission order granting or denying the application. To withdraw the application, the applicant must furnish the Commission with a written notice of withdrawal executed by a duly authorized person.
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(1) Records of original entry into the rating organization's accounting system and records reflecting entries to and balances in all general ledger accounts of the rating organization for each fiscal year.
(2) Records with respect to each of the rating organization's current credit ratings indicating (as applicable):
(i) The identity of any credit analyst(s) that determined the rating;
(ii) The identity of the person(s) who approved the rating before it was issued;
(iii) The procedures and methodologies used to determine the rating;
(iv) The method by which the credit rating was made readily accessible;
(v) Whether the credit rating was solicited or unsolicited; and
(vi) The date the credit rating action was taken.
(3) A record for each person (for example, an obligor, issuer, underwriter, or other user) that solicits the rating organization to determine or maintain a credit rating indicating:
(i) The identity and principal business address of the person; and
(ii) The credit rating(s) determined for the person.
(4) A record for each subscriber to the credit ratings and/or credit analysis of the rating organization indicating the identity and principal business address of the subscriber and the compensation received from the subscriber.
(5) A record describing each type of service and product offered by the rating organization.
(b)
(1) All significant records (for example, bank statements, invoices, and trial balances) underlying the information included in the rating organization's annual audited financial statements and schedules furnished to the Commission pursuant to § 240.17g-3.
(2) Internal records, including non-public information and work papers, used to determine a credit rating.
(3) Credit analysis reports, credit assessment reports, and private rating reports and internal records, including non-public information and work papers, used to form the basis for the opinions expressed in these reports.
(4) All compliance reports and compliance exception reports that relate to its business as a credit rating agency.
(5) All internal audit plans, internal audit reports, documents relating to internal audit follow-up measures that relate to its business as a credit rating agency, and all records identified by the rating organization's internal auditors as necessary to perform the audit of an activity that relates to its business as a credit rating agency.
(6) All marketing materials that relate to its business as a credit rating agency.
(7) All external and internal communications, including electronic communications, received and sent by the rating organization and its employees relating to initiating, determining, maintaining, changing, or withdrawing a credit rating.
(8) All records made pursuant to paragraph (b) of § 240.17g-6.
(9) All Form NRSROs (including information and documents in the exhibits thereto) furnished to the Commission.
(c)
(2) The records required to be retained pursuant to paragraphs (a)(3) and (a)(4) of this section must be retained for three years after the date of the last receipt by the person in the record of a service or product of the rating organization.
(3) The records required to be retained pursuant to paragraphs (b)(1) through (b)(9) of this section must be retained for three years after the date the record is made or received by the NRSRO.
(d)
(e)
The undersigned acknowledges that books and records it has made or is retaining for [the rating organization] are the exclusive property of [the rating organization] and the undersigned undertakes that upon the request of [the rating organization] it will promptly provide the books and records to [the rating organization] or the U.S. Securities and Exchange Commission (“Commission”) and its representatives and that upon the request of the Commission it will promptly permit examination by the Commission and its representatives of the records at any time or from time to time during business hours, and promptly furnish to the Commission and its representatives a true and complete copy of any or all or any part of such books and records.
A rating organization that agrees with a third-party custodian to have the custodian make or retain any record specified in paragraphs (a) and (b) of this section remains responsible for complying with every provision in this section, notwithstanding the agreement.
(f)
Upon a request by the U.S. Securities and Exchange Commission (“Commission”) and its representatives, [the rating organization] will furnish at its own expense to the Commission and its representatives, at its principal office in Washington, DC, an accurate copy of any book(s) and record(s) which [the rating organization] is required to make, keep current, retain, or produce to the Commission pursuant to any provision of the Securities Exchange Act of 1934 or any regulation under that Act. [The rating organization] will produce the requested copy of the book(s) or record(s), in a form acceptable to the Commission and its representatives, including translation into English, within 14 days of receiving the request or within a longer period of time if the Commission consents to that longer time period.
(g) A rating organization must promptly furnish the Commission and its representatives with legible, complete, and current copies of those records of the rating organization required to be retained under this section, or any other records of the rating organization subject to examination under section 17(b) of the Act (15 U.S.C. 78q(b)) that are requested by the Commission and its representatives.
(h) Where used in this section
(1) If a corporation, is incorporated or has its principal office in a location outside the United States, its territories, or possessions; or
(2) If a partnership or other unincorporated organization or association, is organized under the laws of a jurisdiction or has its principal office in a location outside the United States, its territories, or possessions.
(a) A credit rating agency registered with the Commission as a nationally recognized statistical rating organization (“rating organization”) annually must furnish the Commission, at its principal office in Washington, DC, with audited financial statements. The audited financial statements must be prepared in accordance with generally accepted accounting principles, must comply with applicable provisions of Regulation S-X (§ 210.1-01—§ 210.12-29, of this chapter), must be as of the fiscal year end indicated on the rating organization's current Form NRSRO, and must be furnished not more than 90 calendar days after the end of the fiscal year.
(b) The audited financial statements must include the following supporting schedules:
(1) A schedule separately itemizing the following aggregate revenues (as applicable):
(i) Revenue from determining and maintaining credit ratings;
(ii) Revenue from subscribers;
(iii) Revenue from granting licenses or rights to publish credit ratings;
(iv) Revenue from determining credit ratings that are not made readily accessible (private ratings); and
(v) Revenue from all other services and products offered by the rating organization (include descriptions of any major sources of revenue);
(2) A schedule providing the total aggregate and median annual compensation of the rating organization's credit analysts; and
(3) A schedule listing the 20 largest issuers and subscribers that used credit rating services provided by the rating organization by amount of net revenue received by the rating organization and its affiliates from the issuer or subscriber during the fiscal year. In addition, add to the list any obligor or underwriter that used credit rating services provided by the rating organization if the net revenue received by the rating organization and its affiliates from the obligor or underwriter during the fiscal year equaled or exceeded the net revenue received from the 20th largest issuer or subscriber. Include the net revenue amount for each customer.
A customer would have used the “credit rating services” of the rating organization if the customer was any of the following: an obligor that is rated by the rating organization (regardless of whether the obligor paid for the credit rating); an issuer that has securities or money market instruments rated by the rating organization (regardless of whether the issuer paid for the credit rating); any other person that has paid the rating organization to determine a credit rating with respect to a specific obligor, security, or money market instrument; or a subscriber to the credit ratings of the rating organization. In calculating net revenue received from a customer, the rating organization should include all fees, sales proceeds, commissions, and other revenue received by the rating organization and its affiliates for any type of service or product, regardless of whether related to credit rating services, and net of any fees, sales proceeds, rebates, and monies paid to the customer by the rating organization and its affiliates.
(c) The audited financial statements must be furnished in accordance with the following:
(1) They must be certified by an accountant who is qualified and independent in accordance with paragraphs (a) through (c) of § 210.2-01 of this chapter, and the accountant must give an opinion on the financial statements and schedules in accordance with paragraphs (a) through (d) of § 210.2-02 of this chapter; and
(2) The rating organization must attach to the financial statements a signed statement by a duly authorized person at the rating organization that the person has responsibility for the financial statements and, to the best knowledge of the person, the financial statements fairly present, in all material respects, the financial condition, results of operations, and cash flows of the rating organization for the period presented.
(d) The Commission may grant an extension of time from any requirements in this section either unconditionally or on specified terms and conditions on the written request of a rating organization if the Commission finds
The written policies and procedures a nationally recognized statistical rating organization (“rating organization”) establishes, maintains, and enforces to prevent the misuse of material nonpublic information in accordance with section 15E(g)(1) of the Act (15 U.S.C. 78o-7(g)(1)) must include:
(a) Procedures designed to prevent the inappropriate dissemination within and outside the rating organization of material nonpublic information obtained in connection with the performance of credit rating services;
(b) Procedures designed to prevent a person associated with the rating organization or any member of an associated person's household from purchasing, selling, or otherwise benefiting from any transaction in securities or money market instruments when the person possesses or has access to material nonpublic information obtained in connection with the performance of credit rating services that affects the securities or money market instruments; and
(c) Procedures designed to prevent the inappropriate dissemination within and outside the rating organization of a pending credit rating action prior to making the action readily accessible.
(a) It shall be unlawful for a nationally recognized statistical rating organization (“rating organization”) or a person associated with the rating organization to have a conflict of interest relating to the issuance of a credit rating identified in paragraph (b) of this section, unless:
(1) The rating organization has disclosed the type of conflict of interest on Form NRSRO in accordance with section 15E(a)(1)(B)(vi) of the Act (15 U.S.C. 78o-7(a)(1)(B)(vi)); and
(2) The rating organization has implemented policies and procedures to address and manage conflicts of interest in accordance with section 15E(h) of the Act (15 U.S.C. 78o-7(h)).
(b)
(1) Receiving compensation for any type of service or product from a person that is subject to a pending or issued credit rating of the rating organization.
(2) Owning securities or money market instruments of a person that is subject to a pending or issued credit rating of the rating organization.
(3) Receiving compensation from a subscriber that uses the credit ratings of the rating organization for regulatory purposes.
(4) Owning securities or money market instruments of, or having any other form of ownership interest in, a subscriber that uses the credit ratings of the rating organization for regulatory purposes.
(5) Having any other business, personal, or ownership relationship or affiliation with a person that is subject to a credit rating of the rating organization, an underwriter of securities or money market instruments rated by the rating organization, or a subscriber that uses the credit ratings of the rating organization for regulatory purposes.
(6) Being an officer or director of a person that is subject to a credit rating of the rating organization, an underwriter of securities or money market instruments rated by the rating organization, or a subscriber that uses the credit ratings of the rating organization for regulatory purposes.
(7) Any other type of conflict of interest identified by the rating organization on Form NRSRO in accordance with section 15E(a)(1)(B)(vi) of the Act (15 U.S.C. 78o-7(a)(1)(B)(vi)).
(c)
(1) The rating organization issues or maintains a credit rating solicited by a person that, in the most recently ended fiscal year, provided the rating organization and its affiliates with net revenue (as determined under § 240.17g-3) equaling or exceeding 10% of the total net revenue of the rating organization and its affiliates for the year;
(2) The rating organization issues or maintains a credit rating with respect to a person where the rating organization, a credit analyst who participated in determining the credit rating, or a person associated with the rating organization responsible for approving the credit rating, owns securities of, or has any other ownership interest in, the rated person or is a borrower or lender with respect to the rated person;
(3) The rating organization issues or maintains a credit rating with respect to a person associated with the rating organization; or
(4) The rating organization issues or maintains a credit rating where a credit analyst who participated in determining the credit rating, or a person associated with the rating organization responsible for approving the credit rating, is also an officer or director of the person that is subject to the credit rating.
(a)
(1) Conditioning or threatening to condition the issuance of a credit rating on the purchase by an obligor or issuer, or an affiliate of the obligor or issuer, of any other services or products, including pre-credit rating assessment products, of the rating organization or any person associated with the rating organization.
(2) Issuing, or offering or threatening to issue, a credit rating that is not determined in accordance with the rating organization's established procedures and methodologies for determining credit ratings, based on whether the rated person, or an affiliate of the rated person, purchases or will purchase the credit rating or any other service or product of the rating organization or any person associated with the rating organization.
(3) Modifying, or offering or threatening to modify, a credit rating in a manner that is contrary to the rating organization's established procedures and methodologies for modifying credit ratings based on whether the rated person, or an affiliate of the rated person, purchases or will purchase the credit rating or any other service or product of the rating organization or any person associated with the rating organization.
(4) Issuing or threatening to issue a lower credit rating, or lowering or threatening to lower an existing credit rating, or refusing to issue a credit rating or withdrawing a credit rating, with respect to securities or money market instruments issued by an asset pool or as part of any asset-backed or mortgage-backed securities transaction, unless a portion of the assets which comprise the asset pool or the asset-backed or mortgage-backed securities also are rated by the rating organization. The prohibitions on refusing to issue a credit rating or withdrawing a credit rating shall not apply if the rating organization has rated less than 85% of the market value of the assets underlying the asset pool or the asset-backed or mortgage-backed securities.
(5) Issuing an unsolicited credit rating and communicating with the rated person to induce or attempt to induce the rated person to pay for the credit rating or any other service or product of
(b) A rating organization refusing to issue a credit rating or withdrawing a credit rating with respect to an asset pool or the asset-backed or mortgage-backed security must document in writing the reason for the refusal or withdrawal.
3. The authority citation for Part 249b continues to read in part as follows.
15 U.S.C. 78a
4. Section 249b.300 and Form NRSRO are added to read as follows:
This form shall be used for application for, and amendments to applications for, registration as a nationally recognized statistical rating organization pursuant to section 15E of the Securities Exchange Act of 1934 (15 U.S.C. 78o-7) and § 240.17g-1 of this chapter.
The text of Form NRSRO will not appear in the Code of Federal Regulations.
1. Form NRSRO is the Application for Registration as a Nationally Recognized Statistical Rating Organization (“NRSRO”) under Section 15E of the Securities Exchange Act of 1934 (“Exchange Act”). Exchange Act Rule 17g-1 requires credit rating agencies to use Form NRSRO to submit an INITIAL APPLICATION to apply to register with the U.S. Securities and Exchange Commission (“Commission”) as an NRSRO, to submit updated information as required by Section 15E(b)(1) of the Exchange Act as an AMENDMENT to Form NRSRO, and to submit the ANNUAL CERTIFICATION required by Section 15E(b)(2) of the Exchange Act.
2. Exchange Act Rule 17g-1(c) requires a credit rating agency to promptly furnish the Commission with a written notice if information submitted on an INITIAL APPLICATION, including exhibits and attachments, is found to be or becomes materially inaccurate before the Commission has granted or denied the application. The notice must describe the circumstances in which the information was found to be materially inaccurate, and the credit rating agency must promptly update the application with accurate information by furnishing the Commission with an amended INITIAL APPLICATION on Form NRSRO.
3. An INITIAL APPLICATION will be considered furnished to the Commission on the date the Commission receives a complete and properly executed Form NRSRO. Section 15E(a)(2) of the Exchange Act prescribes time periods and requirements for the Commission to grant or deny the application after it has been furnished to the Commission.
4. Type or clearly print all information. Provide the name of the credit rating agency and the date on each page. Use only the current version of Form NRSRO or a reproduction of it.
5. Mark each page of information that is submitted on a confidential basis “Confidential.” The Commission will accord that information confidential treatment to the extent permitted by law.
6. Section 15E of the Exchange Act (15 U.S.C. 78o-7) authorizes the Commission to collect the Information on this form from Applicants and NRSROs. The principal purpose of this form is to determine whether an Applicant should be granted registration as an NRSRO and, once registration is granted, whether a credit rating agency continues to meet the criteria for registration as an NRSRO. Intentional misstatements or omissions constitute federal criminal violations under 18 U.S.C. 1001.
The information collection is in accordance with the clearance requirements of Section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The Commission may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a valid Office of Management and Budget (OMB) control number. The time needed to complete and file this form will vary depending on individual circumstances. The estimated average time is displayed on the facing page of this form. Send comments regarding this burden estimate or suggestions for reducing the burden to Director, Office of Information Technology, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
The information contained in this form is part of a system of records subject to the Privacy Act of 1974, as amended (5 U.S.C. 552a). The Commission has published in the
7. Exchange Act Rule 17g-2(b)(9) requires a credit rating agency to retain copies of all information and documents submitted to the Commission with Form NRSRO These records must be made available for inspection upon a regulatory request.
8. ADDRESS—The mailing address for Form NRSRO is: U. S. Securities and Exchange Commission, Form NRSRO Mailbox, Mail Stop, 100 F Street, NE., Washington, DC 20549-
1. Check the appropriate box at the top of Form NRSRO;
2. All Items must be answered and all required responses must be complete. Enter “None” or “N/A” where appropriate;
3. Provide all required information and attachments, including undertakings, exhibits, certifications, and Disclosure Reporting Pages, as applicable;
4. If information submitted, including exhibits and attachments, is found to be or becomes materially inaccurate before the Commission approves the application, promptly furnish the Commission with accurate information, pursuant to Rule 17g-1(c); and
5. Execute the Form.
1. Submit an AMENDMENT to Form NRSRO in order to:
a. Promptly provide accurate information to the Commission in the event that information on the current Form NRSRO, on any Disclosure Reporting Page (NRSRO), or on Exhibits 2 through 9 becomes materially inaccurate, pursuant to Section 15E(b)(1) of the Exchange Act; or
b. Change the scope of an existing registration to add a class of credit ratings.
2. To submit an AMENDMENT:
a. Check the appropriate box at the top of Form NRSRO and briefly describe the nature of the amendment;
b. Complete Items 1, 2, 4, 5, 7, 8 (with Disclosure Reporting Pages, as applicable), and update, as required, Exhibits 2 through 9, to provide accurate information. (Do not update or attach Exhibits 2 through 9 if the information in them remains materially accurate.) If applying to change the scope of an existing registration, complete Item 6. An NRSRO is not required to update certifications by qualified institutional buyers. (
c. Execute the Form.
1. Submit an ANNUAL CERTIFICATION on Form NRSRO within 90 days after the end of each calendar year, in accordance with Section 15E(b)(2) of the Exchange Act;
2. Check the appropriate box at the top of Form NRSRO;
3. Complete and update, as required, Items 1, 2, 4, 5, 7, 8 (with Disclosure Reporting Pages, as applicable), and update, as required, Exhibits 2 through 9, to provide accurate and complete information;
4. Update Exhibit 1;
5. Attach a list of all AMENDMENTs submitted during the previous calendar year; and
6. Execute the Form.
Item 1E. The individual listed as the contact person must be authorized to receive all communications from the Commission and must be responsible for their dissemination within the credit rating agency's organization.
Item 3. Exchange Act Rule 17g-4(c) requires a non-resident rating organization to undertake to provide books and records upon Commission request. The undertaking must be signed by a person duly authorized by the credit rating agency, must be attached to the INITIAL APPLICATION, must be marked “Non-Resident Books and Records Undertaking,” and must be in substantially the following form:
“Upon a request by the U.S. Securities and Exchange Commission (“Commission”) and its representatives, [the rating organization] will furnish at its own expense to the Commission and its representatives, at its principal office in Washington, D.C., an accurate copy of any book(s) or record(s) which [the rating organization] is required to make, keep current, retain, or produce to the Commission pursuant to any provision of the Securities Exchange Act of 1934 or any regulation under that Act. [The rating organization] will produce the requested copy of the book(s) or record(s), in a form acceptable to the Commission and its representatives, including translation into English, within 14 days of receiving the request or within a longer period of time if the Commission consents to that longer time period.
Item 4. Section 15E(j) of the Exchange Act requires an NRSRO to designate a compliance officer responsible for administering the policies and procedures of the credit rating agency established pursuant to Sections 15E(g) and (h) of the Exchange Act (respectively, to prevent the misuse of material nonpublic information and address and manage conflicts of interest) and for ensuring compliance with applicable securities laws, rules, and regulations.
Item 5. Section 15E(a)(3) of the Exchange Act and Exchange Act Rule 17g-1(d) require a credit rating agency to make certain information and documents submitted to the Commission publicly available on its Web site or through another comparable, readily accessible means within 5 business days of the date of the Commission order granting the application for registration as an NRSRO, and, subsequently, within 5 business days of furnishing an amended Form NRSRO to the Commission. All information and documents submitted to the Commission in the completed INITIAL APPLICATION, any AMENDMENT, and the ANNUAL CERTIFICATION must be made publicly available
Item 6. Complete Item 6 only if submitting an INITIAL REGISTRATION or changing the scope of an existing registration to add a class of credit ratings.
Item 6A. Pursuant to Section 15E(a)(1)(B)(vii) of the Exchange Act, a credit rating agency applying for registration as an NRSRO must disclose in the application the classes of credit ratings for which the credit rating agency is applying to be registered. Indicate these classes by checking the appropriate box or boxes. Pursuant to the definition of “nationally recognized statistical rating agency” in Section 3(a)(62) of the Exchange Act, a credit rating agency must have been in business as a credit rating agency for at least the 3 consecutive years immediately preceding the date of its application for registration as an NRSRO. For each class of credit ratings, provide the approximate number of ratings the credit rating agency currently has outstanding and the number of consecutive years immediately preceding the date of the application that the credit rating agency has issued ratings as a credit rating agency, as defined in Section 3(a)(61) of the Exchange Act, with respect to that class.
Item 6B. Pursuant to Section 3(a)(61)(A) of the Exchange Act, a “credit rating agency” issues “credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee.” Briefly describe how the credit rating agency makes the credit ratings in the classes indicated in Item 6A readily accessible for free or for a reasonable fee.
Item 6C. Section 15E(a)(1)(B)(ix) of the Exchange Act requires that an application for registration as an NRSRO include written certifications from qualified institutional buyers, as defined in paragraph Section 3(a)(64) of the Exchange Act, except that, under Section 15E (a)(1)(D), a credit rating agency is not required to submit these certifications if it has received a no-action letter from Commission staff prior to August 2, 2006 stating that the staff would not recommend enforcement action to the Commission against any broker or dealer that uses credit ratings issued by the credit rating agency to compute capital charges under Exchange Act Rule 15c3-1. If the credit rating agency is required to submit certifications, paragraph Section 15E(a)(1)(C) of the Exchange Act requires the credit rating agency to submit a minimum of 10 certifications from qualified institutional buyers, none of which is affiliated with the credit rating agency. Each certification may address more than one class of credit ratings. Of the submitted certifications, at least two must address each class of credit rating identified in Item 6A under “Applying for Registration.” If this is an AMENDMENT to an existing
The required certifications must be signed by a person duly authorized by the certifying entity, must be notarized, must be marked “Certification from Qualified Institutional Buyer,” and must be in substantially the following form:
“I, [Executing official], am authorized by [Certifying entity] to execute this certification on behalf of [Certifying entity]. I certify that all actions by stockholders, directors, general partners, and other bodies necessary to authorize me to execute this certification have been taken and that [Certifying entity]:
(i) Meets the definition of a ‘qualified institutional buyer’ as set forth in section 3(a)(64) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(64)) pursuant to following subsection(s) of 17 CFR 230.144A(a)(1) [insert applicable citations];
(ii) Has seriously considered the credit ratings of [the credit rating agency] in the course of making investment decisions for at least the three years immediately preceding the date of this certification, in the following classes of credit ratings:
[Applicable classes of credit ratings]; and
(iii) Has not received compensation either directly or indirectly from [the credit rating agency] for executing this certification.
The certifications should be marked “Confidential,” and the Commission will accord them confidential treatment to the extent permitted by law. A credit rating agency is not required to make them publicly available.
Item 7. Check the appropriate boxes indicating the classes of credit ratings for which the credit rating agency is currently registered as an NRSRO. Complete other parts of this Item according to the instructions for Item 6.
Item 8. Answer each question by checking the appropriate box. Information that relates to an affirmative answer must be provided on a Disclosure Reporting Page (NRSRO) and attached to Form NRSRO. The Disclosure Reporting Page (NRSRO) is attached to these instructions.
Item 9. Exhibits. Section 15E(a)(1)(B) of the Exchange Act requires an application for registration as an NRSRO to contain certain specific information and documents and, pursuant to Section 15E(a)(1)(B)(x), any other information and documents concerning the applicant and any person associated with the applicant that the Commission requires as necessary or appropriate in the public interest or for the protection of investors.
A. Initial Application. An Initial Application must include Exhibits 1 through 13.
B. Amendment. Update Exhibits 2 through 9 promptly with new information and documents whenever the existing information or documents contained in the exhibit becomes materially inaccurate (
C. Annual Certification. Section 15E(b)(2) of the Exchange Act requires an NRSRO to certify annually that the information and documents attached to Form NRSRO are accurate and to list any material changes that occurred to the information and documents during the previous year. Section 15E(b)(1) of the Exchange Act requires that an NRSRO amend the information provided with Exhibit 1 in the ANNUAL CERTIFICATION.
D. If any information or document required to be included with any exhibit is maintained in a language other than English, provide both the original document (or a true and complete copy of the original document) and a version of the document translated into English. Attach a certification by an authorized person that the translated version is a true, accurate, and complete English translation of the information or document.
E. Attach exhibits to Form NRSRO in numerical order. Bind each exhibit separately, and mark each exhibit or bound volume of the exhibit with the appropriate exhibit number. The information provided in the exhibits must be sufficiently detailed to allow for verification. The information and documents required to be provided in Exhibits 1 through 9 must be made publicly available (
Exhibit 1. This exhibit must include credit ratings performance measurement statistics over short-term, mid-term, and long-term periods
Exhibit 2. This exhibit must include the procedures and methodologies that the credit rating agency uses to determine credit ratings, including unsolicited credit ratings. The procedures and methodologies furnished in this exhibit should include,
For purposes of this exhibit:
Exhibit 3. This exhibit must include policies or procedures established, maintained, and enforced by the credit rating agency to prevent the misuse of material, nonpublic information as required by Section 15E(g) of the Exchange Act and 17 CFR 240.17g-4.
Exhibit 4. This exhibit must include a description of the organizational structure of the credit rating agency, including,
Exhibit 5. This exhibit must include a copy of the written code of ethics in effect at the credit rating agency or a statement of the reasons why the credit rating agency does not have a written code of ethics.
Exhibit 6. This exhibit must identify in general terms the types of conflicts of interest relating to the issuance of credit ratings by the credit rating agency including,
Exhibit 7. This exhibit must include the written policies and procedures established, maintained, and enforced by the credit rating agency pursuant to Section 15E(h) of the Exchange Act to address and manage conflicts of interest.
Exhibit 8. This exhibit must include the following information regarding each of the credit rating agency's credit analysts and each officer and employee of the credit rating agency responsible for supervising the credit rating agency's credit analysts:
• Name.
• Title and brief description of responsibilities, including whether a supervisor.
• Employment history.
• Post-secondary education.
• Whether employed by the credit rating agency full-time (at least 35 hours per week) or part-time.
For purposes of this exhibit:
Exhibit 9. This exhibit must include the following information about the credit rating agency's designated compliance officer (identified in Item 4) and any other persons that assist the designated compliance officer in carrying out the responsibilities set forth in Section 15E(j) of the Exchange Act:
• Name.
• Title and brief description of responsibilities.
• Employment history.
• Post secondary education.
• Whether employed by the credit rating agency full-time (at least 35 hours per week) or part-time.
Exhibit 10. This exhibit must include a list of the largest customers that used credit rating services provided by the credit rating agency by the amount of net revenue received by the credit rating agency and its affiliates from the customer during the fiscal year ending immediately before the date the credit rating agency submits an INITIAL APPLICATION. In making this list, the credit rating agency should first determine the 20 largest issuer and subscriber customers in terms of net revenue received by the credit rating agency and its affiliates from the issuer or subscriber. Next, the credit rating agency should add to the list any obligor or underwriter that used credit rating services provided by the credit rating agency if the net revenue received by the credit rating agency and its affiliates from the obligor or underwriter during the fiscal year equaled or exceeded the net revenue received from the 20th largest issuer or subscriber. In making the list, rank the customers from largest to smallest and include the net revenue amount for each customer.
For purposes of this exhibit:
Exhibit 11. This exhibit must include financial statements of the credit rating agency, which must include a balance sheet, an income statement and statement of cash flows, and a statement of changes in owners’ equity, audited by an independent public accountant, for each of the three fiscal or calendar years ending immediately before the date it submits an INITIAL APPLICATION to the Commission, subject to the following:
If the credit rating agency is a division, unit, or subsidiary of a parent company, the credit rating agency can provide audited consolidated and consolidating financial statements of the parent company.
If the credit rating agency does not have audited financial statements for one or more of the three fiscal or calendar years ending immediately before the date it submits an INITIAL APPLICATION to the Commission, it can provide unaudited financial statements for the applicable year or years, but the credit rating agency must provide audited financial statements for the fiscal or calendar year ending immediately before the date it submits an INITIAL APPLICATION to the Commission. The credit rating agency must attach to the unaudited financial statements a certification by a person duly authorized by the credit rating agency to make the certification that the person has responsibility for the financial statements and that to the best knowledge of the person making the certification the financial statements fairly present, in all material respects, the financial condition, results of operations, and cash flows of the rating organization for the period presented.
Exhibit 12. This exhibit must include the following information,
• Revenue from determining and maintaining credit ratings;
• Revenue from subscribers;
• Revenue from granting licenses or rights to publish credit ratings;
• Revenue from determining credit ratings that are not made readily accessible (private ratings); and
• Revenue from all other services and products offered by the rating
Exhibit 13. This exhibit must include the total and median annual compensation of the credit rating agency's credit analysts.
F. Explanation of Terms. For purposes of Form NRSRO, the following definitions and descriptions apply:
1. COMMISSION—The U. S. Securities and Exchange Commission.
2. CREDIT RATING—An assessment of the creditworthiness of an obligor as an entity or with respect to specific securities or money market instruments [Section 3(a)(60) of the Exchange Act].
3. CREDIT RATING AGENCY [Section 3(a)(61) of the Exchange Act]—Any person:
• Engaged in the business of issuing credit ratings on the Internet or through another readily accessible means, for free or for a reasonable fee, but does not include a commercial credit reporting company;
• Employing either a quantitative or qualitative model, or both to determine credit ratings; and
• Receiving fees from either issuers, investors, and/or other market participants.
4. NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION [Section 3(a)(62) of the Exchange Act]—A credit rating agency that:
• Has been in business as a credit rating agency for at least the 3 consecutive years immediately preceding the date of its application for registration as an NRSRO;
• Issues credit ratings certified by qualified institutional buyers with respect to:
○ Financial institutions, brokers, or dealers;
○ Insurance companies;
○ Corporate issuers;
○ Issuers of asset-backed securities;
○ Issuers of government securities, municipal securities, or securities issued by a foreign government; or
○ A combination of one or more of the above; and
• Is registered as an NRSRO.
5. NON-RESIDENT RATING ORGANIZATION [Exchange Act Rule 17g-4(a)]—A nationally recognized statistical rating organization that:
• If a corporation, is incorporated in or has its principal office in, a location outside the United States, its territories, or possessions;
• If a partnership or other unincorporated organization or association, has its principal office in a location outside the United States, its territories, or possessions.
6. PERSON—An individual, partnership, corporation, trust, limited liability company, or other organization.
7. PERSON ASSOCIATED WITH THE CREDIT RATING AGENCY—Any partner, officer, director, or branch manager of the credit rating agency (or any person occupying a similar status or performing similar functions), any person directly or indirectly controlling, controlled by, or under common control with a credit rating agency, or any employee of a credit rating agency [Section 3(a)(63) of the Exchange Act].
8. QUALIFIED INSTITUTIONAL BUYER—An entity listed in 17 CFR 230.144A(a) that is not affiliated with the credit rating agency [Section 3(a)(64) of the Exchange Act].
This Disclosure Reporting Page (DRP) is to be used to report information related to affirmative responses to Item 8 of Form NRSRO.
Use a separate DRP for each event or proceeding. Attach additional pages as necessary.
Check Item being responded to:
The individual(s) or entity(ies) for whom this DRP is being filed is (are):
If this DRP is being filed for one or more associated persons, provide the full name of the associated person(s):
If this DRP provides information relating to a “Yes” answer to Item 8A, describe the act(s) that was (were) committed or omitted; or the order(s) or finding(s); or the injunction(s) (provide the relevant statute(s) or regulation(s)) and provide jurisdiction(s) and date(s):
If this DRP provides information relating to a “Yes” answer to Item 8B, describe the crime(s) and provide jurisdiction(s) and date(s):
If this DRP provides information relating to a “Yes” answer to Item 8C, attach the relevant Commission order(s) and provide date(s):
By the Commission.